Gobede and Another v John and Another (Civil Cause 816 of 2020) [2023] MWHC 132 (20 February 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 816 OF 2020 1 ! BETWEEN DOLOFE GOBEDE AND PETER MBELA (suing as administrator of the estate of JEKESEN! BAKALt ANAFI on behalf of the estate and dependents of the Deceased)... os: cuss sensor sonore career creee sree CLAIMANT AND VASINE JOIN 001 cso veesee ses cee cesses sen eay ovens cee ccscnssres cepeed see cee cerenetes see cared?) DEFENDANT PRIME INSURNCE COMPANY LIMITED. 0c ses cee ces esa cen cap eun ses cee sostey ors see one 28) DEFENDANT CORAM: A. P KAPASWICHE : ASSISTANT REGISTRAR Kambalame + Counsel for the Claimant Kapinda : Counsel for the Defence Kumwenda : Clerk / Official Interpreter ORDER ON ASSESSMENT OF DAMAGES BACKGROUND This is a claim for damages for loss of expectation of life; loss of dependency; cost of a police report and costs of the action, A default judgment was entered against the 2" Defendant as he was served _and never entered d defence, The matter of proceeded with assesment of damages hearing and both EEK Ate See a | Page 1 parties attended the assesment proceedings. This is my determination of the quantum: ot the” oe damages payable In the present case. THE EVIDENCE The evidence In the present matter came from one witness namely Dolofe Gobede. She is one of the administrators of the estate of Jekeseni Bakill Anafl, deceased. She happens to be the wife of the deceased, It was the evidence of PW1 that on the 28th day of September 2019, the deceased was a pedal cyclist going to work from the direction of Nathenje going towards Lllongwe and upon arrival at Ching’ombe, a motor vehicle going the opposite direction left its road and encroached on the right dirt verge hitting the deceased. The deceased died on the spot as a result of the Injuries arising from the accident. At the time of his death, the deceased was aged 37 and was working as a guard earning a salary of MK30,000.00 per month. The deceased was also doing growing and selling vegetables, cabbages and tomatoes where he could make between MK200,000,00 to MK290,000,.00. The deceased left 9 dependents being the widow, 6 children and parents. The defence did not parade any witness, Defence Counsel only ‘addressed the Court on the agreement that he had with Counsel for the Claimant to the effect that the liability of the 2" Defendant was only limited to MK5,000,000.00, This was confirmed by Counsel for the Claimant. THE LAW ON DAMAGES The law generally provides that a person who suffers bodily injuries or losses due to the negligence of another Is entitled to recover damages. The fundamental principle which underlines the whole law of damages is that the damages to be recovered must, in money terms, be no more and no less than the Plaintiffs actual loss. The principle was laid down in numerous case authorities more particularly by Lord Blackburn in the case of Livingstone v, Rawyards Coal Company (1880) 4 AC 25 in the following terms: “where any injury or loss is to be compensated by darnages, in settling a sum of money to be given as damages, you should as nearly as possible get at the sum of money which will put the party who has been Injured, or who has suffered loss, in the - same position as he would have been in if he had not sustained the wrong for which he Is now getting his compensation or reparation.” Sy ES RT TET Ee si EI DE STE TIT EE a patie SELL _ a P ape 2 SUBMISSIONS AND ANALYSIS This Court has been called to determine the appropriate quantum of damages to be pald to the ~ Claimant on the heads of loss of expectation of life and loss of dependency. LOSS OF EXPECTATION OF LIFE The claimant has been awarded damages for loss of expectation of life. In Flint v Lovell (1935) 1 KB 354 it was stated that a man has a legal right that his life should not be shortened by the tortious act of another, It is further observed that his normal expectancy of life Is a thing of temporal value, so that its impairment is something for which damages should be given, Another point is that under this head, damages are claimable on the basls of loss of prospective happiness by the deceased. Further to that, damages for loss of expectation of life are fixed and ought not to fluctuate with each case. in determining what damages to award the claimant for loss of expectation of life, current awards are looked at to determine an appropriate amount of compensation. In Cain v Wilcock [1968] ALLER 817, the court upheld the view in Benham v Gambling and stated that: “The award of damages is usually a conventional figure. In this realm mathematical calculations do not come at all. Upon any view, that which is to be awarded for loss of expectation of life can be only an artificial figure, and really, in the end, the only guidance that one derives from the cases cited is that the artificial figure should be a moderate one.” LOSS OF DEPENDENCY The plaintiff claimed damages for loss of dependency. Salmond on the Law of Torts, 17 Edition, Sweet & Maxwell 1977: 582-587, reasons that damages for loss of dependency is premised on the proof of a pecuniary loss by the death of the deceased. A widow recovers damages for loss of financial support by her deceased husband, Children recover the portion of income thelr father would have expended on them during his working life and while they are still minors, The practice of the High Court has been to apply the multiplier and multiplicand principle in arriving at the quantum of damages for loss of dependency (Mbila and another v Attorney General 16[1} MILR 313). Salmond (supra) states that the multiplier is the estimate of the probable length of the deceased's earning Timp ee coe ge BR yee a period. the amount aafned is subjected to deductions like the s sums sthat would have been spent by a the deceased on himself (Kundwe v Stagecoach Malawi Limited, isa] 9 MLR 356). The prayer for the Claimant as presented in the skeleton arguments was 5 that this Court sfioulld make: a total award of MK11,666,666.66 as total damages on all heads of claims, Out of this sum; a sum Of MK2,500) 000,00 Is for damages for loss of expectation of ies MiKo, 146,¢ 666. 66 for loss of of the clalin for the damages on loss of expectation of life and calculations | were also duly presented before this Court. However, as stated earlier on, both lawyers addressed this Court on one crucial point; that the liability of the 3°4 Defendant Is limited to a total sum of MK5,000,000.00. The Court record will show that when making the application for default judgment; the Claimant Indicated that the summons were only served on the 2°¢ Defendant and the default judgment herein was only entered with respect to the 2"¢ Defendant. FINDING Having appreciated the evidence and the skeleton arguments; there is no way that this Court would make an award of Jess than MK5,000,000.00 In the present case, it Is for the above stated reasons that this Court proceeds to make an award of MI5,000,000,00 for the Claimant on all the heads of claims herein as per the maxim liability of damages for the payable by the 2°¢ Defendant. | further award costs of the action to the Claimant to be agreed by the parties falling which to be assessed by the Court he 2"! Defendant should pay the sald sum of MK5,000,000,00 within a period of 30 days. MADE IN CHAMBERS THIS 20'* DAY OF FEBRUARY 2023 ANTHONY PITILIZANI KAPASWICHE ASSISTANT REGISTRAR