Mtelera v Misolo & Anor. (Personal Injury 530 of 2015) [2017] MWHC 45 (16 February 2017)

-__ ... ~,• ..•. _ .. ~ ... ·· ---~· ~-\ ·-·---· .! ; · · • ( · · J • . . l .1 -. , ,-·, I, •• ' I , .. . ' ' Fi ·r \ \ \ '"--.,,,,,..,.,.-"''~ .- c ' .•. •"} \ ! t".) ,. ' ,. .. • t.. , '" ~~-._.....·1 \ t \ I REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 530 OF 2015 BETWEEN: FRIDAY MTELERA .............................................................................................................. PLAINTIFF AND NENANI MISOL0 ................................................................................................................ 151 DEFENDANT PRIME INSURANCE COMPANY LIMITED ......................................................................... 2N°DEFENDANT CORAM: MANDALA: ASSISTANT REGISTRAR Mwabungulu: Counsel for Plaintiff M&M Global: Legal Practitioners for the Defendant Chitsulo: Court Clerk ORDER ON ASSESSMENT OF DAMAGES INTRODUCTION AND BACKGROUND This is an order for assessment of damages pursuant to an order on liability made on 25th October 2016 by the Honorable Justice HSB Potani. In this order, the defendants were found liable and ordered to compensate the Plaintiff with damages for pain, suffering and loss of amenities of life; damages for deformity and disfigurement, MK3000.00 as cost of police report and MK2500.00 as cost of medical report. The Plaintiff commenced the present act ion on 23rd June 2015 claiming damages for pain, suffering and loss of amenities of life; damages fo r deformity and disfigurement, MK3000.00 as cost of police report and MK2500.00 as cost of medical report. The basis of the Plaintiff's claim was road accident that occurred on 20th January 2015 along the Blantyre-Zalewa Road when the l 5t Defendant driving motor vehicle registration number NE 2591 Scania Lorry hit a motor vehicle registration number MC 3927 being driven by the Plaintiff. Liability was already determined by Justice HSB Potani, this court will proceed to determine the quantum of damages to be awarded to the Plaintiff. EVIDENCE The Plaintiff adopted his witness statement as evidence in chief; it is set out below: I am the above-named Friday Mte/era. t; IG~ ·f Cn ............,.., l.1e1;~, . JJ.~·\~ ···- 1.,. ~)Ur·-7 7 9 11 I am a driver by occupation. I recall it was on 20th January 2015 I was coming from Ba/aka going towards Blantyre. I was driving motor vehicle Toyota Hiace Minibus registration number MC 3927 on Zalewa-Blantyre Road. Upon arrival at or near Mlambe Mission Hospital a Scanio Lorry coming from the opposite direction, was overtaking two vehicles that were on its lane. The aforesaid Scanio Lorry, whilst in the process of overtaking the other t wo motor vehicles, collided with the vehicle I was driving. I hereby produce a police report marked 'FM1' which I processed to substantiate the fo regoing. As a result of the accident I sustained fracture of the knee join t of the right leg, fracture of the right lower leg, fracture of the ankle of the right leg, a cut on the left leg and a cut and bruises on the right elbow. I was taken to Mlambe Mission Hospital and then I was transferred to Queen Elizabeth Central Hospital where I was fully treated. I was then taken to theatre where I was informed that my right leg had fractures on three parts. My leg was subsequently inserted with seven metal rods on the three fractu res. The metal rods are still in my right leg to date. I was admitted from 2dh Jan uary, 2015 to 16th February, 2015. I exhibit a medical report and mark it 'FM2' to substantiate the foregoi ng. As a result of the accident I can no longer drive a motor vehicle and I cannot walk without clutches and pain killers. The information stated herein is true to the best of my experience, knowledge, information and belief The Plaintiff tendere d a Po lice Report that was marked Exhibit Pl. However, in a determination of assessment of dam ages a police report is immaterial as it does not shed light on injuries suffered by t he Plaintiff. The Pol ice Report would be more useful in a determinati on for liability. The determination of lia bility was already made in this matter and it gave rise to the assessment of damages. I therefore attach no weight to t he Police Report. The Plaintiff tendere d a medical report that was marked Exh ibit P2. It states in part, "Nature of injuries: fracture femu r, fracture right patella, fracture tibia/fibula, cut on the left leg, cut on the right elbow and bruises. Surgical operation or treatment accorded to the patient: open reduction and internal fixation, plaster of Paris, wound dressing, suturing. Permanent incapacity at 30%. The patient will perform m anual work and previous job with difficulties. Patient will be depending on analgesics." The Plaintiff's evidence was not opposed . SUBMISSIONS BY COUNSEL FOR THE PLAINTIFF Counsel for the Plaintiff filed written submissions before the court. These submissions laid out the comparable awards which I will discuss subsequently. I should commend Counsel for the Plaintiff fo r the copies of the judgments that he furnished to the court. ASSESSMENT GUIDELINES Da mages for persona l injuries are awarded for the plaintiff's both pecun iary and non-pecuniary losses. The pecuniary losses include the loss of earnings and other gains, which t he plaintiff would have made had he not been injured, and t he medical and other expenses to w hich he is put as a result of the injury. Th e non-pecuniary losses include pain and suffering, loss of amenities of life and loss of expectatio n of life. The principle underlining the award of damages is to compensate the injured party as nearly as possible as money can do it. See Cassel and Co v Broom {1972} AC 1027. See also Tembo v City of Blantyre and The National Insurance CoLtd- Civil Cause No. 1355 of 1994 (unreported). In the case of Tionge Zuze (a minor, through A. S. Zuze) v Mrs Hilda Chingwalu, Nyirenda AR, cited the case of HQ Chidule v Medi MSCA 12 of 1993 where it was stated that; "in assessing damages for pain and suffering, the court must consider the pain which the particular plaintiff has suffered because the circumstances of the particular plaintiff are bound to have a decisive effect in the assessment of damages ... Where a claim relates to non-monetary loss in respect of which general damages are recoverable it is not possible to quantify the loss in monetary terms with mathematical precision. In such cases courts use decided cases of a comparable nature to arrive at an award." The Plaintiff is claimi ng damages for pain, suffering and loss of amen ities of life; damages for deformity and disfigure ment, MK3000.00 as cost of police report and MK2500.00 as cost of medical report. This court will not make an award for the cost of police and medical repo rts as no evidence was led to prove the same. Cost of police and medical reports are special damages and must be specifically pleaded and proved as required by law -Govati v Manica Freight Services (Mal) Limited [1993] 16(2) MLR 521 (HC). A Plaintiff who claims special damages must therefore adduce evidence or facts which give satisfactory proof of the actual loss he or she alleges to have incu rred . Counsel for the Plaint iff submitted numerous comparable awards for the cou rt to use. The court will only highlight th e citations whose copies were provided to the court. These are: • Felista Kachaso v Peter Kondowe & Others High Court, Principal Registry, Civil Ca use Number 320 of 2009 where the Respondent was hit by a motor vehicle, she fell down on the back of her head and rested on her arm . The Plaintiff sustained a big cut wound on the back of her head, a closed fracture of the right humerus, an open fracture of the right leg near the ankle and a closed fracture of the pelvis. The respondent was cast in a plaster of Paris, the wound was sutured and she was admitted to the hospital for 18 days. Every day for 10 days she was treated with a drip and two injections. Afte r the plaster of Paris was removed, she went for a check up on 21 November 2008 and the fractured leg was recast in a plaster of Pa ris which was removed on 23 December 2008. Just ice Ka mwambe awarded the Plaintiff damages of MK5,600,000.00 on 16th October 2009. • Zuze Bonjesi v Prime Insurance Company Limited High Court, Principal Registry, Civil Cause Number 488 of 2011. The Plaintiff sustained a severe open fracture of the left tibia, massive wound exposing the bone and tendons and deep wound on the right leg. He was in hospital for 3 months and permanent disability was pegged at 45%. The Assista nt Registrar gave a global sum of M K7,000,000.00 as compensation on 17th July 2012. • Louise Chakwantha v Prime Insurance Company Limited High Court, Principal Registry, Civil Cause Number 2195 of 2010. The Plaintiff sustained a fractured left fi bu la bone, multiple soft tissue injuries and a swollen leg. The Plaintiff was admitted at St Luke's Mission Hospital at Chilema in Zomba before being transferred to Zomba Central Hospital where he was admitted. At Zomba Central Hospital his leg was cast in Plaster of Paris and upon his discharge was t reated as an outpatient at Queen Elizabeth Central. Unfortunately, the POP was replaced because the leg continued to swell. His leg was cast in a POP for two months and his degree of incapacity is 35%. The Assistant Registrar awarded MK4,500,000.00 as damages for pa in and suffering, MKl,500,000.00 as damages for loss of amenities of life, MK150,000.00 for disfigurement and MK2,000.00 as specia l damages for be ing cost of a police report. A total sum of MK6,152,000.00 was awarded to the Pla intiff on 10th August 2012 by the Assi stant Regist rar. • Rex Wala/av Davison Chikuta and Prime Insurance Company Limited High Court, Zomba District Registry, Personal Injury Cause Number 461of2011. The Plaintiff sustained an open fracture of the left tibia, bruises on the left arm and cuts on his fa ce. The Plaintiff was admitted at Queen El izabeth Central Hospital for 11 days. The Plai ntiff's leg is severely deformed, it is now bent and shortened . He walks with a limp and cannot walk properly. His incapacity was pegged at 50%. The Plaintiff was awarded the sum of MK2,500,000.00 as damages for pain and suffering, MK3,000,000.00 for loss of amenities of life and MKl,000,000.00 for defo rmity. And MK4,500.00 being special damages for the cost of procuring police and med ical reports. This award was made on 20th March 2013 by the Assistant Registrar. • Christina Mande v Charter Insurance Company Limited, High Court, Principal Regist ry, Personal Injury Cause Number 329 of 2016 . The Plaintiff sustained a fracture of the right femu r (inclusive of the knee cap), dislocation of the right hip joint, cuts on the head and lost consciousness on the spot of the accident. Surgery was performed on th e pate lla/knee cap and metal rods insert ed to hold the joint together. The Plaintiff was t reated as an outpatient at Qu een Elizabeth Central Hospital for one and a half months and can no longer perform the sea sonal employment she once did with lllovo Suga r Co mpany. The Plaintiff was awarded MK6,300,000 .00 for pain and suffering, loss of ame nities of life and disfigurement. Counsel for the Plaintiff proposed a qua ntum of MKl0,000,000.00 as adequate compensation for the Plaintiff. COMPENSATION The court notes that Counsel for the Plaintiff selected cases where the inj uries sustained were similar to those sustained by t he Plainti ff in the present matter. For this, I am indebted to Counsel for citations t hat are on the po int while acknowledging that no two cases can be exactly the same. The Plaintiff herein susta ined a fracture of the knee joint of the right leg, fractu re of the right lower leg, fracture of the ankl e of the right leg, a cut on the left leg and a cut and bruises on the right elbow. The Plaintiff was also hospitalized for 27 days, almost one month . The Plaintiff in the Christina Mande Case susta ined injuries very similar to th e Plaintiffs. Christina Mande sustained a fractured femur, dislocation of the right hip joint, cuts on the head and had surgery performed on the patella/knee cap that resu lted in inse rtio n of met al rods. Both Plaintiffs have been left w ith rods in t he ir legs and had to undergo surgery to have th em placed. This also resulted in lengthy hospital admissions and being treated as outpatients for lengthy periods as well. the Christina Mande Case, MK6,3000,000.00 was awarded to the Plaintiff in January 2017. Th is is t he award that's closest in t heir previous occupations . In As well as to resume failure time to the assessment cu rrently in consideration by the Co urt. However, in t he present case the Plaintiff is a driver by profession and he can no longer drive with ease due t o the deformity and pain in his legs. The loss of full use of his legs has more impact on him and his livelihood in comparison to Christi na Mande. In the Felista Kachaso Case the Plaintiff was hospitalised fo r 18 days and was awarded MKS, 600,000.00; in the Zuze Bonjesi Case the Plaintiff was hosp ital ised for 3 mont hs and was awarded MK7,000,000.00;and in the Rex Wala/a Case the Plaintiff was hospitalised for 11 days that resulted in a severely defo rmed leg and wa s awarded MK6,504,500.00 . Length of time spent in the hospital is worthy of consideratio n. Suffe ring is defined as : '"sufferin g' includes fright, fear of future disability, humiliation, embarrassment and sickness". See : Ian Goldrein et al, Personal Injury litigation, Practice and Precedents (Butterworths, 1985} 8 and City of Blantyre v Sagawa {1993) 16(1) MLR 67 (SCA). The Pla int iff he rein, was hospitalised for 27 days during which he underwent the procedure that pla ced metal rods in his leg. His leg was broken in three places and he required constant medical atte nt ion . This co urt finds that the Pla intiff underwent immense suffering during his hospitalisation. As stated the Plaintiff claims a total sum of MKl0,000,000.00 for the inj uries sustained by the Pla intiff. However, I believe th is may be excessive . The assertion that the Kwacha has been devalued by about 200% is not supported by any evidence from Counsel. However, in Steve Kasambwe v SRK Consulting (BT) limited Personal Injury Ca use Number 322 of 2014 (unreported), the court stated : 'At times the court is faced with situations where the comparative cases have been rendered obsolete because of the devaluation of currency and inflation. It would not achieve justice if the court insisted on the same level of award as was obtaining in the previous cases. In such situation, when deciding the new cases, the court must take into accoun t the life index, i.e. cost of living and the rate of inflation and the drop in value of the currency. The court must therefore not necessarily follow the previous awards but award a higher sum than the previous cases.' In this case, the previo us awards have provided great guidance to the court. Th e case of Christina Mande was delivered just last month and is fairly reflective of the value of t he Kwacha at this moment. The only distingu ish ing factor would be the extent of the co nsequences of the incapacitated limbs on the two Pla intiffs as stated above . The Plaintiff is therefo re awa rded MKS,000,000.00 for pain and suffering, MKl,000,000 for loss of amenities of life, MKl,000,000.00 for disfigurement and costs of the action (to be taxed if not agreed) . Compensation totals a global sum of MK7,000,000.00. Each party is at liberty to appeal to a Judge in chambers within seven (7) days. Ordered in Chambers on the J.6 ........... day o~;.\~N~ .. 2017 at Chichiri, Blantyre ~~ CM~la ASSISTANT REGISTRAR