Lundu v Prime Insurance Company Limited (Personal Injury 903 of 2014) [2017] MWHC 127 (22 May 2017)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY Cause Number 903 of 2014 Injury Personal BETWEEN: GRIVIN CHARLES AND PRIME INSURANCE PLAINTIFF LUNDU .................................. ............................................................ ........ COMPANY LIMITED ................ .................................... .......... DEFENDANT ............ CORAM: Ms. CM MANDALA: ASSISTANT Mr C Kalua: Mr M Ngwata: Mr PW Chitsulo: Counsel Counsel Court Clerk REGISTRAR for Plaintiff for Defendant ORDER ON ASSESSMENT OF DAMAGES INTRODUCTION AND BACKGROUND This is an order for assessment November Defendant 2016 by the Honorable and the Plaintiff was awarded of damages Justice to a Judgment pursuant R Mbvundula. Judgment on the 29th day of the against was entered delivered damages and costs as prayed for. action the present commenced on 10th September special of life and disfigurement, that occurred The Plaintiff suffering and loss of amenities The basis of the Plaintiff's insured defendant's knocked right leg, a deep cut on the right foot, dislocation clavicle, as he was cycling sustained deep cut on the forehead claim was an accident hit the Plaintiff him to the ground. The Plaintiff and multiple bruises on gth June 2014 when the road and along the Blantyre/Chikwawa of the right foot, painful swollen a dislocation of the right shoulder, fracture of the right 2014 claiming damages for damages and costs of the action. pain, on both knees and hands. EVIDENCE The Plaintiff "I GR/VIN CHARLES adopted his witness LUNDU, do hereby in this action. statement as evidence state as follows: 1. I am the plaintiff in Chief. It states: happened because the on 9 June 2014 at Stella Maris Secondary I was as me. right going to turning I was hit by motor vehicle registration registration It involved I sustained The accident in a road accident me for a distance. could have not happened. When I had almost finished and I was going to Zingwangwa. Maris Secondary School I was turning and number BR 5429 Toyota Hiace Minibus and swerved to the right lane. Had it been that he was in his that I was involved motor vehicle me the motor vehicle pulled driver was overspeeding day, I was coming from Green Corner road. 2. I remember School. myself. 3. On the material cycling on the left hand side of the Blantyre/Chikwawa 4. When I reached a place near Stella Zingwangwa. number BR 5429 Toyota Hiace Minibus which was also coming from the same direction After hitting minibus left lane the accident 5. As a result of the accident wounds on the right foot, dislocation of the right shoulder, severe cut wound on the left eye, a deep cut wound on the forehead, severe injuries involving the head, bruises on both knees and bruises on both hands. 6. I lost consciousness Hospital after regaining they took me to theater 7. I have not completely I am walking and the wounds on the leg have not healed. I sometimes behave like an abnormal dislocated 8. I also want to mention beyond repair. 9. I want to be compensated Law to claim compensation 10. I make this statement on the accident consciousness. and I was put on oxygen. spot. I just realized I was admitted for two weeks. to the best of my knowledge and belief. The bone on the shoulder that I was at Queen Elizabeth when My leg will become swollen of the right foot, swollen has not come i;,to its place. healed as I can no longer that on the material As part of treatment day I was cycling see properly. and my bicycle for the injuries dislocation I therefore right leg, deep cut I sustained. instructed on my behalf. knowing person. be true it to Messrs Golden & was also damaged Central I also experience loss of memory and which was Central from Queen Elizabeth to hospital: from: 23.6.2014 Hospital date discharged of injuries: Nature 9/06/2014, to 30.8.14; from hospital: a 'he sustained right leg, a deep cut on the right foot, dislocation of the and multiple a deep cut on the forehead and it was marked on both knees bruises report Treated swollen tendered Pl. It stated: Clinical analyses treatment offered: a medical "Date admitted as an outpatient painful of the right foot, right clavicle, The Plaintiff Exhibit 23/06/2014; dislocation right shoulder, fracture and hands.' Medical application, in walking, developing injuries sustained In his viva voce evidence, injuries. suturing scar formation, arthritis: 'Yes, post traumatic The Plaintiff the Plaintiff are serious." painful right shoulder of wound and oxygen therapy.' made: 'head to toe examination, Surgical and antibiotics'; 'analgesics x-ray of the right shoulder, right foot.' were 'POP operations of the performed The results were: 'difficulties of Possibility and he cannot lift up heavy objects.' The limb: 'No'. 30% incapacity. Shortening of treatment arthritis.' told the court that he sustained an injury confirmed that he was injured and he showed the court his on his eye, the court noted a visible Page I 2 also sustained right knee, foot and leg were injured. cut wound was on the left eye. The Plaintiff scar where a shoulder. Further, the Plaintiff's scarring and a swollen ankle. The Plaintiff scarring where he had sustained however the court could not see any scars on the forehead. shoulder and right leg. on•the knee. There was also visible on his head and some visible The court noted also showed the court his 1-eft knee where the court noted on both hands The Plaintiff showed the court the left part of his forehead, The Plaintiff between the knuckles skin discoloration feels pain on his right injuries. an injury still the Plaintiff confirmed the contents an injury on his head. Lundu confirmed that he cannot read English. Lundu was referred to In cross examination, sustained paragraph However, he visit the hospital for his memory loss or abnormal behavior identify the medical 7 of the medical he had never gone to the hospital in this regard. He did not get a medical report nor did since the accident. He was able to report from the hospital and he is able to see. report where he confirmed of the medical and stated report that he that his leg swells when he is walking. SUBMISSIONS Counsel BY COUNSEL FOR THE PLAINTIFF for the Plaintiff filed written submissions for the Court's consideration. • Owen Kayira v Unusu Shaikh Personal Injury Cause Number 1160 of 2013 where the Plaintiff multiple soft tissue on pt July 2014 being damages K2, 500,000.00 on the spot. over the head and lost consciousness injuries for a head injury, and 2 others was awarded • Nellie Manda v Prime Insurance Company Limited Civil Cause Number 619 of 2009 where of the left upper arm, deep wound on the right thigh, a fracture sustained the plaintiff on the lower leg and deep cut wounds on the left thumb, left index finger finger on 25th April 2012. • Thokozani Josamu and Luka Mandevu v Prime Insurance for pain and suffering and was awarded MK6,500,000.00 Company Limited and left middle of life and loss of amenities Civil Cause No bruises 1534 of 2010 where the Plaintiff sustaining a big cut wound on the inside parts of the body, cut wounds on the head, a swollen spot. was awarded MK2,000,000.00 on 4th April 2014 after on both hands and other part of the knee, bruises hand and lost consciousness on the • Robert Piason & 3 others v Company Limited Personal Injury Cause No 413 Prime Insurance sustained a cut wound on the head, chest pains and painful and she was awarded of 2013 where the pt Plaintiff shoulder loss of consciousness, cut on the pelvis September and was awarded 2014. MK3,000,000.00. deep cut wound on the shoulder, The 3rd Plaintiff sustained multiple bruises These awards were made on 6th a head injury, on the knee and a with MK3,000,000.00. for the Plaintiff Counsel Plaintiff coupled submitted that considering with the loss in value of the kwacha due to devaluation, of injuries sustained by the in the sum compensation the multiplicity Page I 3 of K6,000,000.00. As well as K3,000.00 being the cost of the police report, Kl0,500.00 being the cost of the medical r eport and costs of the action. THE LAW ON ASSESSMENT OF DAMAGES The High Court in Ngosi t/a Mzumbamzumba Enterprises v H Amosi Transport Co Ltd [1992] 15 MLR 370 (HC) set the basis for assessment of damages: 'Assessment that remains of damages is the amount or value of the damages.' presupposes ...... that damages have been proved. The only matter The rule is that prior to assessment, Co Ltd v Mbewe Yanu-Yanu the injured party has provided proof of damage sustained - {SCA) 11 MLR 405. Even in the face of difficulties in assessing damages, the Plaintiff is not disentitled to compensation -Mkumuka v Mphande (HC) 7 MLR 425. The cardinal principle in awarding damages is 'restitutio in integrum'which means, in so far as money can do it, the law will endeavour to place the injured person in the same situation as he was before the injury was sustained -Halsbury's Laws of England 3rd Ed. Vol. II p.233 para 400. This principle was further enunciated in Livingstone v Raywards Coal Co (1880) 5 App Cas 25 at 39, where Lord Blackburn said: where any injury ' ... reparation I who has been injured he not sustained you should is to be compensated as possible as nearly or who has suffered, in settling by damages, get at the sum of money which in the same position as he would have been in had the sum to be given for will put the party the wrong for which he is now getting his compensation or reparation.' The law distinguishes general damages and special damages as follows -general damages are such as the law will presume to be the direct natural or probable consequence of the action complained of. Special course -Stros Bucks Aktie Bolag v Hutchinson damages, on the other hand, are such as the law will not infer from the nature of the (1905) AC 515. In determining the natural consequences, suffer-McGregor the court considers on Damages p23 para 1-036. if the loss is one which any other claimant will in a like situation Special Freight damages must be specifically (Mal) Limited Services pleaded and must also be strictly proved -Govati v Monica [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 incurred. damages are not awarded -Wood Industries Corporation fail to meet this strict proof then Ltd v Malawi filed by the Plaintiff Where documents Railways Ltd [1991] special 14 MLR 516. Although perfect compensation what the plaintiff should get is fair and adequate compensation -British Commission (1956) AC 185. Since it is difficult to assess damages is impossible, v Gourley involving monetary loss, courts resort to awarding conventional figures guided by awards made in similar cases and also taking into account the money value. Lord Morris buttresses this contention in Page I 4 (1964) West v Shepherd has been battered regarded AC 326 at 346 where he states: All judges and courts compensation.' as giving reasonable and shattered. frame that 'money cannot renew a physical can do is to award a sum which must be The court bears in min Injury Personal d the sentiments l : Cause Number 322 of 2014 (unreported) aid out in Steve Kasambwe v S imited RK Consulting (BT) L where the comparative cases have been rendered of the devaluation on the same level of award as was obtaining of currency because 'At times the court is faced with situations obsolete the court insisted situation, cost of living therefore previous and the rate of inflation follow not necessarily when deciding the new cases, cases.' the previous the court must take into account and inflation. justice It would not achieve cases. In such in the previous the life index, The court must value of the currency. awards but award a higher sum than the i.e. if and the drop-in COMPENSATION The Plaintiff herein right foot, dislocation and multiple hospitalised months. sustained a dislocation of the right foot, painful of the right on both knees and hands. The Plaintiff the accident bruises for two weeks following shoulder, fracture and was treated of the right clavicle, swollen right leg, deep cut on the deep cut on the forehead upon impact, for a further lost consciousness as an outpatient was two Pain and Suffering that which is immediately felt upon the nerves and brain, connotes to the accident fright, The word 'pain' related 'suffering' Goldrein of Blantyre v Sagawa [1993] or resulting fear of future from medical includes et al, Personal Injury disability, Practice treatment humiliation, necessitated embarrassment by the accident and sickness. 1985) 8 and City See: Ian (Butterworths, and Precedents Litigation, 16(1) MLR 67 (SCA). be it directly while Lundu was ad_mitted injuries limbs, that range from fractures, dislocated for a period to Queen Elizabeth Central Hospital deep cuts and of up to numerous sustained The Plaintiff In addition, bruises. two weeks and had to be treated the Plaintiff numerous the Plaintiff procedures underwent was taken to theater as an outpatient for up to two months. in order to stabilize when he woke up in hospital and placed on oxygen treatment. him. These procedures after the impact. Upon arrival The Plaintiff were topped with the shock that at the hospital, went through Josamu Case and the Robert Piason Case cited by Counsel to the are the closest The Thokozani claim in terms of injuries Plaintiff's direction to the court, a cut wound, bruises hand and loss of consciousness a piece to the pt Plaintiff and time as both were made in 2014. Both cases give good in the Josamu Case, the Plaintiff the sum of K2, 000,000.00 on both hands and other parts of the body, cut wounds on the head, swollen was awarded for at the spot of the accident. The Piason Case awarded that sustained a cut wound on the head, chest pains and painful K3,000,000.00 shoulder Page I 5 and to the 3rd Plaintiff bruises shoulder, a head injury, on the knee and a cut on the pelvis. who sustained multiple loss of consciousness, deep cut wound on the With these cases in mind, the court bears in mind the length oftime that has passed since the awards were made, April 2014 and September 2014 respectively, under all heads awarded to the Plaintiffs. of MKl,800,000.0 for pain and suffering. 0 as compensation For these reasons, this court awards the Plaintiff and the fact that these were global sums the sum Loss of Amenities simply 'loss of amenities of life' Damages for loss of amenities The expression from one's injuries. is simply deprived aware of the loss or not. See: Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910 and City of Blantyre of the pleasures of life, which amounts to a substantial means loss of faculties of pleasures v Sagawa [1993] 16{1) MLR 67 {SCA) at 72. of life resulting loss, whether the plaintiff of life are awarded for the fact that the plaintiff is can no longer see properly. also states that he experiences His leg swells when he is walking The Plaintiff behaves like an abnormal person. As noted by Counsel Since the accident, the Plaintiff healed. wounds have not properly he sometimes cross examination, the Plaintiff to gauge the Plaintiff's difficult any mental effect that the accident the dislocated shoulder can be seen by the naked eye without the need for an x-ray or any medical did not adduce any evidence mental issues, if any, without any supporting It would be documents to confirm further alleges that has not come back into its place. The court had occasion to inspect the of the bone. Often times dislocation shoulder and saw no scarring and the loss of memory and might have had on the Plaintiff. of the alleged behaviour. Ngwata for the defence anti no displacement The Plaintiff during of the bone equipment. For these reasons, this court will award K750,000.00 being damages for loss of amenities . Disfigurement In the matter of James Chaika v NICO General Insurance stated that 'Disfigurement has to permanently his life which is not a pleasant for disfigurement. live with. In this case, the plaintiff In this case, the Plaintiff thing.' is not a matter to be taken lightly and casually as it is something that one will most likely walk with a limp for the rest of was awarded the sum of MK300,000.00 Co Ltd - the Honourable Justice Potani The court had occasion scarring on the left eye, scarring there was visible knuckles scarring on both hands. on the Plaintiff's on the Plaintiff's to inspect the Plaintiff's scars during the time of hearing and noted visible right leg and his right ankle was swollen. Further left knee and discolouration between the plaintiff's to this court's Although Counsel did not make any submission on damages recourse of 2013 where the Plaintiff for disfigurement assessment in Rona/do Likoloma on 4th May 2017 was awarded this court will have v Iqbal Mohomed Civil Cause Number 870 being damages the sum of MK350,000.00 scarring. In the case of Braidon Mayoka v Nico for dog bites that left very visible for disfigurement, Page I 6 General Insurance Company Limited Personal Injury Cause Number 882 of 2012 on 27th April 2017 this court awarded the sum of MK300,000 sustained scarring Satewani v Prime Insurance awarded the sum of MK300,000 to a Plaintiff that indenture where the scar is. Company Limited Personal who as damages for disfigurement to a Plaintiff Marko on the face and darkening of the chest. In the case of Matthews Injury Cause Number 628 of 2013 this court eg as well as an had a scar on the right l With these awards in mind, this court awards the sum of MK350,000.00 disfigurement. as damages for Special Damages Cost of police proved as required (HC). A Plaintiff satisfactory award for the cost of police and medical reports are special by law - Govati v Monica Freight pleaded and damages and must be specifically [1993] 16(2) MLR 521 Services damages must therefore (Mal) Limited adduce evidence or facts which give who claims special proof of the actual loss he or she alleges to have incurred. This court will not make an and medical reports as no evidence was led to prove the same. DISPOSAL The Plaintiff is therefo MK750,000.00 for loss of ame nities of life and MK350,000.00 being damages for di sfigurement. re awarded MKl,800,000.00 being damages for pain and suffering, A total sum of MK2,900,000.00 is awarded in damages. Costs to be taxed. Each party is at liberty t o appealAo the Su preme Court of Ap peal within the requisite time frames. Ordered in Chambers on the 22 nd day of Ma y 2017 at Chichiri, B lantyre CM Mandala ASSISTANT REGISTRAR Page I 7