Hetala v Manuel & Britam Insurance Company Ltd (Personal Injury Cause No. 1446 of 2015) [2022] MWHCCiv 69 (13 January 2022)

THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION PERSONAL INJURY CAUSE NO, 1446 OF 2015 BETWEEN SATLESL HETALA. cc ccccec eee ce cette renter thee eee ene ee EE EERE SEER E EEE COE EE CLAIMANT AND GET MANUEL. cece cccccrec terre eee been reer een CREE re EE LEED a 18? DEFENDANT BRITAM INSURANCE COMPANY LTD... ccecteeeecreer ee eee canes eee 2" DEFENDANT- CORAM: Meadalitsa Khoswe Chinwvaza ASSISTANT REGISTRAR Chikwakwa Counsel for claimant G. Mumwenda Court Clerk ORDER ON ASSESSMENT OF DAMAGES Introduction {. This matter was set down for assessment of damages and costs following a default judgment entered on 22" March 2016 there being no notice of intention fo defend or defence after 14 days of being served with summons. Matter was then set down for assessment of damages on four occasions as follows: 6 April, 2016; 12" April,2016; a7 July,2017, 18"* December 2017 but all dates no hearing was done as parties were not attending court, On 20" February, 2018 M&M Global filed notice of appointment as Counsel representing the defendants. They consequently applied for stay of _ assessment of damages in order to have the default judgment set aside on the grounds that they had a defence on merit, The stay was granted and the defendant filed an inter- partes summons to set aside default judgment which was set down for hearing on 15" ~ August, 2018, On this day both parties were not present and matter was not heard. Notice of adjournment was filed and it was set down for hearing of the application on 9th October, 2018, but still both parties were not present and no reasons given for such failure. The Court dismissed the summons to set aside the default judgment and vacated the stay of assessment. A notice for assessment of damages was filed and set down to pg. 1 Sallesj Hetala vs Git Manuel & Brita Insurance Co, Case No, 1446 of 2015- be heard on 9" July,2019 and then on 31% july,2019 when Counsel! for the claimant informed the court that parties were exploring an out of court settlement which if it fails Court would proceed with assessment, Another notice was issued to be heard on 18% May, 2021 and the defendant were not present despite there being proof of service. No reasons were given for such failure and the Court proceed to hear the claimant’s evidence only. Brief Facts and Evidence 2. The unchallenged evidence of the claimant is that on or about the 7" October,2015 he boarded a tricycle MJ 7331 TVS KING from town going to Njewa. Upon arrival at Petroda filling station the driver of the tricycle was trying to avoid being hit by a vehicle that was infront after it had pressed emergency brakes such that in the course of doing so, he was thrown off and was hit by another motor vehicle that was behind, The driver of the tricyele was found to be in the wrong as he was following the vehicle infront of him too close. As a result the claimant sustained a dislocation of the ieft leg. He was iaken to Kamuzu. Central Hospital and his injuries were described as soft tissue injury with 20% incapacity. The claimant adopted his witness statement which had exhibit SH1(a) and SH. 1(b) medical and police reports respectively. 3. The claimant is seeking damages for pain and suffering, loss of amenities of life, special damages and costs of the action following the injury he sustained im road accident that occurred due to the negligence of the defendants insured. The 24 defendants are sued as the insurers of the tricycle registration number MJ 7331 TVS KING, Issue for Determination How much should be awarded as damages General Principles on Damages 4, A person who suffers injury as a result of another's negligence is entitled to be compensated for the injury suffered by the negligent party. Such damages are awarded to compensate the plaintiff in so far as money can do (see Nakuaunkhe vy Paulo Chakhumbiva and Aitorney General Civil cause n0.357 of 1997 (Unreported). As was held in the case of Namwiyo v Semu et al [1993] 16 (1) MLR 369, in awarding compensation, the court attempts to put the plaintiff in the position he would have been but for the injury arising from the tort, Such damages however cannot be quantified by any mathematical calculation as such the court relies on decided cases of a comparable nature for guidance. Sight must not be lost however, of peculiar facts of each case in order to avoid occasioning injustice by inflexible maintenance of consistency and uniformity (D. Xwataine Malombe & Another vs, GH, Chikho a Bec Line Minibus Civil Cause No, 3687 of 2001 (HC Unreported). Pain and Suffering and Loss of Amenities of Life 5. Pain is used to suggest physical experience of pain caused by and consequent upon the — injury while suffering relates to the mental elements anxiety, fear, embarrassment and the like. On the other hand, loss of amenities of life embraces all that which reduces the plaintiff's enjoyment of life, his deprivation of amenity whether he is aware of it or not (See City of Blantyre v Sagawa [1993] 16 (1) MLR 67), In Kanpont v Aiforney General pg. 2 Saitesi Hetala vs Gilt Manuel & Britarn insurance Co, Case No. 1446 of 2015- [1990] 13 MER I 69, 171 the court beld that loss of amenities of life must include the loss of all the things the claimant used to be or to do, see, and experience-they need not be of leisurely nature at all. In the case of Manley v Rugby Portland Cement and Company [1950] No 286 (reported in Kemp and Kemp, “Quantum of Damages,” Volume 1 2" edition 1961 at 9.2640) Birkett, LJ had this to say: “There is a head of damages which is sometimes called loss of amenities; the man- made blind by accident will no longer be able to see familiar things he has seen all his life, the man has both legs removed will never again go upor his walking excursions, things of that kind-loss of amenities. ” 6. Afthough pain and suffering and toss of amenities for life are distinct however for purposes of quantum the court does consider them together and make a single award under those heads. (see Henry Manyowa Pphirit and Prime Insurance Co. Lid Personal Injury Cause No. 139/2012; Andrew Katola ¥, Prime Insurance Co Ltd Civil Cause No, 2807/2009). 4 Counsel did not file any skeleton arguments of case authorities with comparable awards of injuries of this nature. However the Court has some cases where sucht injuries have been dealt with as follows: g. Masina vs prime insurance Co Ltd, Personal injury case Mo. 2 of 2013 where the 4 claimant sustained a deep cut wound on the forehead, lost one tooth painful swollen legs and soft tissue injury, his incapacity was assessed at 10%, He was awarded %1,800,000,00 for pain and suffering, loss of amenities of life in October 2015. 9. In the case of Petre Sangisoni vs Stat Mhkondiwa & General Alliance Co. Lid personal injury case 10. 331 of 2018 where the claimant sustained facial cut, dislocation of the right knee and bad metals inserted to the knew, feet and hand abrasion. ‘The percentage of his incapacity was rated at 49%, He was awarded K3,500,000 for pain and suffering and loss of amenities of life. 10, In the present case the claimant sustained a dislocation of the left leg and soft tissue injury. According to the medical report the percentage of incapacity is yated at 20% . _ This challenge he said has affected his ability to walk long distances. Without under mining the pain and suffering of ihe claimant in the present case but the injury can not be compared to the two cited cases Thig court is of the view that for pain and suffering 11,500,000 would be reasonable award while for loss of amenities of life a sum of 1500,000.00 would be just and reasonable. Special damages: 11. The claimant pleaded special damages for obtaining police and medical reports. The made under GR No. police: report on file indicates that payment of 3,000 was ! 1924698, while on the medical report there is no evidence of payment. The cout realizes that this is specific claim which ought not only to be pleaded but it must also be proved. In the absence of such evidence of payment for medical report it is not awarded, However the Court awards the claimant 13,000 for the police report. Party and Parly Costs of the Action pe. a Saliesi Hetala VS Gift Manuel & Britam Insurance Co. Case No, 1446 of 2015- Cee - damages plus costs for the police report. He is awarded K600,000 party and party costs of the |. 12. ‘The general principle is that costs are discretionary as per Order 31 rule 3 (1) of the CPR and also the case of Hal vs Spearhead Holdings Ltd and Others [1990] 13 MLR 143 GHC). Costs normally follow the event, and this means a successful litigant will be entitled to costs of the action. 13. Looking at the history of the matter not being complicated, the documents on the file the skill and industry employed by Counsel to this stage, the Court awatds K600,000.00 as party and party costs summatily ona standard basis as being reasonably incurred and proportionate to the amount of work done on the case pursuant to Order 31 rule 4 and 5 (1) (a) @) Gi) of the CPR. Order The claimant is awarded a total sum of K2,003,000.00 as damages on all the two heads of action, Right of Appeal Hither party aggrieved by this order of assessment has the right to appeal to the Supreme Court of Appeal. Made in Chambers this 13" Day of Januaty, 722, at High Court Lilongwe Registry x oo ne Madalitso Mhoswe Chimwaza ASSISTANT REGISTRAR antes pg. 4 Sallesi tHletala vs Gift Manuel & Britarn Insurance Co. Case No, 1446 of 2015- tt