Londoni v Prime Insurance Company Limited (Personal Injury 742 of 2012) [2017] MWHC 124 (19 May 2017)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY Cause Number 742 of 2012 Injury Personal BETWEEN: HILDA LONDONI {on her own behalf The estate AND PRIME INSURANCE of ROGERS FONDO, deceased) ................. and on behalf of other dependants .............. and beneficiaries .................. ................... PLAINTIFF ............ of COMPANY LIMITED ............... ......... ....................... ................................ .. DEFENDANT CORAM: Ms. CM MANDALA: ASSISTANT REGISTRAR Mr Juma: Counsel Messrs Russell, Mr PW Chitsulo: Court Clerk Smith & Associates: Defendant for Plaintiff ORDER ON ASSESSMENT OF DAMAGES AND BACKGROUND INTRODUCTION This is an order for assessment by the Honorable entered assessed HSB Potani. in favor of the Plaintiff. by the Registrar Justice of damages The Defendant's Damages payable were awarded and costs of the action pursuant to a Judgment defence entered was struck to the Plaintiff. on 25th November was off and Judgment were to be to and recoverable by the Plaintiff the present on 30th October loss of dependency, special damages 2012 claiming and costs of the action. damages for loss of The basis of the action claim was the passing of her brother on 10th March 2011 on the Chingeni-Balaka road near when he was hit by a motor vehicle registration number BN 5524 Toyota Hiace Minibus commenced The Plaintiff of life, expectation Plaintiffs ICS junction driven by Gibson Chisale insured by the Defendant. EVIDENCE The Plaintiff, witness witness statement statement and the supporting states: Hilda Londoni, lives in Ndirande and is a subsistence farmer. The Plaintiff documents attached thereto as her evidence her adopted The in chief. 1. My name is Hilda Landoni village, TA Nsamala, 2. I am the Plaintiff herein to this matter. facts relevant Ba/aka. (nee Fonda). living I am a Malawian farmer. I am a house wife and a subsistence citizen in Ba/aka, Mazenga and a sister of the deceased, Rodgers with the Fonda, I am familiar IG1; ,-::ou, ... ...,. ' . . II ---·­ (�-.. ...____ "' IOF?,'l.r,y .. �------..... Page 11 3. I recall that it was on the night of 10th March 2011, when I got news that my brother involved where he had gone. at or near Soso/a vi/lage on his way home from Chingeni was roadblock in a road accident 4. After the accident, the deceased was r pronounced dead upon arrival. A c "HL 1". opy of the death aka District Hospital whe report is herein exhib re he was ited and shown as ushed to Ba/ died at the age of 54 years and he was survived by 9 children such as myself. He 5. The deceased dependents Ba/aka great Joss to the family brought his pay slip for the month of December ADMARC Depot earning a monthly was in good health and was working as a Security salary as a whole including of MK13, 770. 77. His untimely myself who depended on him. A copy of as well as other Guard at death thereby 2010 is herein exhibited and shown as ''HL 2". 6. After commencing this action I was later informed that I needed to obtain Letters of as hereto Administration 7. I make this statement exhibited and shown as "HL 3". believing the same to be true to the best of my knowledge, information and belief. The witness exhibited a death report. It states: "Date, place and cause of death -10th March 2011, to chest injury, severe head injury. Full name, address, Ba/aka District description Ba/aka; description Registration The witness December Hospital, Hyporia and nationality -Rodgers Sex -M. Age -54 yrs. Length of residence secondary of the deceased in the state vi/lage, TA Nsamala, Fonda, Mazengera -since birth. Orthopaedic Name, address ·and officer. Date of -Robert Bwaluzi of informant -28th June 2011, District commissioner also tendered 2010. It states: whom registered payslip person's a copy of the deceased PO Box 138, Ba/aka. clinical -J Manyetera. 'Name: Fonda RM, Job: Security Office. Earnings: Dept: 01900 Ba/aka Overtime Guard, from ADMARC for the month of District Office, - -9,115.38, Taxable Basic Pay -12,000, 77 .. ' tendered and Net pay-13,770. was an order for limited Ba/aka District gross pay-21,115.38 Location: 11,115.38, The final document "UPON HEARING Counsel AND JONAS FONDO in support {1}THAT a Limited prosecuting Prime insurance Company Limited Grant be and is hereby granted of the application; for the Applicant, a court action in Personal on behalf Injury grant of letters of administration which stated: AND UPON READING the affidavits of HILDA LONDON IT IS HEREBY ORDERED AND DIRECTED as follows: herein to the applicants Cause number 742 of 2012 between of the deceased's estate. Dated 11th July 2014.11 for the sole purpose Hilda London and of SUBMISSIONS BY COUNSEL FOR THE PLAINTIFF Counsel for the Plaintiff filed written submissions the court. before for the Plaintiff submits Counsel awards made in cases of similar recent judicial of life. expectation 7th January awarded 2016; an award of Kl,500,000.00 that loss of expectation to the one under pronouncements consideration. have awarded over MKl,000,000.00 as damages for loss of of life made on for loss of expectation by the court on 7th June 2016 for loss of of life is a conventional Counsel award based on that further submits cited an award of Kl,200,000.00 Counsel nature Page I 2 tanley Dimusa and Prime Insurance Company Lim juries Cause Number ited Personal In who died at the age of 36; an award of Kl,100,000. Esther Kassim (suing who died aged 33 years- of life with respect to a deceased of a on behalf of the estate of Losani Willy, expectation made on 7th August 2015 and an award of Kl,200,000.00 was made on 22 April 2016 in respect deceased deceaced) v S 56 of 2015; Duncan Nyalugwe and Prime lnsuran�e 2011; Rose Black (as administrator Company Limited Civil the dependants of Mrs Ivy Chamaza (deceased) Insurance Company on behalf of the beneficiary Personal Cause Number 309 of 2013 and Paul Chamaza (on his own and on behalf of and 2 others v Edward Nyirenda and Prime Injury Cause Number 659 of Cause Number 383 of 2014. Anne Chilanga (suing Company Limited Personal Injury Limited of the estate of Mabvuto Black (deceased} v Prime Insurance of Friday Nyopola (deceased) v Counsel submits that the Plaintiff loss of expectation has since deteriorated by over 100%. should be awarded the sum of MKl,800,0 00.00 as damages for of life as the cases were decided some months ago and the value of the Kwacha Matias, v Davie Magalasi of Christina and Prime Insurance Company Limited Personal Injury Cause Number who died v Thumbiko Mshali and Prime Insurance Company Limited On loss of dependency Counsel submits the case of Isaac Phoya (suing on behalf deceased) 658 of 2012 where the court on 15th August 2015 used a multiplier aged 60 years. In James Balakasi Cause Number 308 of 2011 on 27th April 2015 the court used a multiplier died aged Mkanda (as administrator of the estate of Hagayi Mkanda Company Limited her behalf and of other dependents) v Chancy Mpingasa and Citizen Civil Cause Number 1340 of 2009 on 2l5t December 2009 the court used a multiplier of 5 for a deceased who died aged 60 years. In William Nsaliwa v Zoom Car Hire Civil 2004 on 10th June 2008 the court adopted a multiplier of 54 years, had outlived the life expectancy Cause Number 35 of the fact that the deceased, aged which was pegged at 43.9 years at the time. 75 years. In Elizabeth of 2 for the deceased of 4 for a decease.d who Insurance 10 despite Civil and on Counsel submits still in good health be calculated as follows: that a multiplier at the time he died. With a monthly of 10 would be adequate in the circumstances was wage of K13, 770. 77 loss of dependency would as the deceased MK13,770. 77x 10 (multiplier) x 12 months in a year x 2/3 = MK 1,101,661.60 THE LAW ON ASSESSMENT OF DAMAGES The High Court in Ngosi t/a Mzumbamzumba 370 (HC) set the basis for assessment of damages: Enterprises v H Amosi Transport Co Ltd [1992] 15 MLR 'Assessment that remains of damages presupposes is the amount or value of the damages.' ...... that damages have been proved. The only matter The rule is that prior to assessment, Yanu-Yanu the Plaintiff Co Ltd v Mbewe (SCA) 11 MLR 405. Even in the face of difficulties is not disentitled -Mkumuka v Mphande (HC) 7 MLR 425. proof of damage sustained damages, in assessing to compensation party has provided the injured - Page I 3 principle in awarding The cardinal can do it, the law will endeavour the injury •, damages to place the injured Laws of England was sustained -Halsbury's is 'restitutio in integrum' which means, in so far as money person in the same situation 3rd Ed. Vol. II p.233 para 400. as he was before This princip aid: where Lord Blackburn s le was further enunciated in Livingstone v R aywards Coal Co (1880) 5 A pp Cas 25 at 39, ' ... where any injury reparation who has been injured he not sustained you should is to be compensated as nearly as possible or who has suffered, in settling the sum to be given for by damages, get at the sum in the same position of money which will put the party as would he have been in had the wrong for which he is now getting his compensation or reparation.' damages The law distinguishes and special damages general as the law will presume to be the direct natural of. Special damages, course - Stros Bucks Aktie Bolag v Hutchinson the court considers consequences, suffer- McGregor on Damages p23 para 1-036. if the loss is on the other hand, are such as the law will not infer from the nature of the (1905) AC 515. In determining the natural will other claimant in a like situation one which any as follows - general damages are such or probable consequence of the action complained damages must be specifically (Mal) Limited [1993] adduce evidence Special Freight Services �ust therefore alleges special damages 14 MLR 516. to have incurred. Where documents are not awarded - Wood Industries pleaded and must also be strictly 16(2) MLR 521 (HC). A Plaintiff who claims special damages proved - Govati v Monica or facts which give satisfactory proof of the actual loss he or she filed by the Plaintiff fail to meet this strict Corporat ion Ltd v Malawi Railways proof then Ltd [1991] is impossible, v Gourley what the plaintiff should get is fair and adequate damages (1956) AC 185. Since it is difficult to assess - British loss, courts compensation Commission Although perfect compensation involving monetary similar cases and also taking West v Shepherd has been battered regarded as giving reasonable (1964) and shattered. All judges compensation.' resort to awarding conventional figures guided by awards made in on in into account the money value. Lord Morris buttresses this contenti frame that and courts can do is to award a sum which must be 'money cannot renew a physical AC 326 at 346 where he states: The court bears in mind the sentiments laid out in Steve Kasambwe v SRK Consulting Personal Injury Cause Number 322 of 2014 (unreported): (BT} limited 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 and therefore previous the rate of inflation follow not necessarily when deciding the new cases, cases.' the previous the court must take into account and inflation. It would not achieve if justice In such cases. in the previous the life index, The court must value of the currency. awards but award a higher sum than the i.e. and the drop-in Page I 4 COM PENSA T/ON Loss of Expecta tion of Life by a Plaintiff where injuries suffered by him have reduced es under of life - Flint v Lovell [1935] 1 KB 354. The claim for damag Damages under this head are claimable his expectation survives the demise of the injured Nyirongo v United estate- head, the thing to be valued is not the prospect of length -Bentham v Gambling [1941] the period of which the victim not of future pecuniary {Mal) Ltd [1990] plaintiff Transport AC 157. No regard must be had to the financial has been deprived, loss - Bentham v Gambling as these damages are in respect AC 157. [1941] 13 MLR 344. In assessing damages under this of days but of a predominantly happy life or gains during losses this head also of his and is thus available to the personal representative of loss of life, and cited four loss of expectation an award of Kl,200,000.00 amount of compensation. Counsel to award the Plaintiff for was made on 22 April 2016 in respect of life made on 7th January 2016; an award Esther Kassim (suing on behalf of the estate who died at the age of 36; an award of Kl,100,000.00 of life, current awards are for the Plaintiff for loss of expectation awarded by the court on 7th June 2016 for loss of expectation what damages In determining looked at to determine an appropriate awards: of Kl,500,000.00 to a deceased an award of Kl,200,000.00 years- and Prime Insurance Company Limited (suing Insurance administrator Cause Number 309 of 2013 and Paul Chamaza (on his own and on behalf of the dependants Ivy Chamaza (deceased) Injury Cause Number 383 of 2014. Personal of Mrs and Prime Insurance Company Limited made on 7th August 2015 and of a deceased who died aged 33 of Losani Willy, ries Cause Number Injury Cause . Number 659 of 2011; Rose Black (as of the estate of Mabvuto Black (deceased) of Friday Nyopola (deceased) Company Limited personal on behalf of the beneficiary v Duncan Nyalugwe and Prime v Edward Nyirenda Personal Inju deaceased) of life with respect v Stanley Dimusa and 2 others v Prime Insurance Company Limited Civil 56 of 2015; Anne Chilanga In addition to the matter cited by Counsel, the court came across the following awards: General Personal et al v The Attorney the sum of MK900,000.00 Injury as damages was 64 years old and the award was made in 2013. and Prime Insurance v Hassan Masambuka • Maki/ale Dimingu was awarded The 6th Plaintiff the 6th Plaintiff life. • Fidelia Injury for loss of expectation the award was made on 4th May 2017 . Diverson Cause 798 of 2012 -the Plaintiff was awarded of life with respect to a deceased the sum of MK650,000.00 who died at the age of 60 years and as damages Cause Number 749 of 2012- of for loss of expectation Company Limited Personal to MKl,500,000, and the awards were made in 2013 and 2017 respectively. for deceased persons All awards cited range from MK650,000 64 respectively account the devaluation awards were made. Further, end of the spectrum him at the higher of the kwacha as a considerable person in the present the deceased amount of time has elapsed 33 and aged between This court will take into since these this places case was 54 years old, The of ages where awards were made for loss of dependency. Page I 5 trend seems to show that the older the deceased life expectancy of the kwacha damages age the lower the award is. For these reasons since the previous for loss person, awards were made this court awards the sum of MK600,000.00 of life. of expectation person is to the the devaluation as or the closer and taking a deceased into account Loss of 'Dependency v SE Ry {1858) expectation as of right or otherwise, 211 at page 214. There is no need for the dependant of pecuniary 3 H & N was under a legal liability For damages under this head, the basic rule is that they are to be calculated benefit, reasonable Franklin the deceased to support There is also no need to show that the dependant death, prospective a purely an age of requiring might not have reached AC 1. [1913] v Jenkins him or her -Franklin was receiving Thus, a dependant 3 H & N in reference to a of life - from the continuance to show that v SE Ry (1858) 211. 3 H & N at the time of the benefit might not have reached a deceased 211; alternatively, -Taff Vale Railway pecuniary parent an age when he or she could afford loss being sufficient. to render assistance assistance v SE Ry (1858) -Franklin child loss of dependency, is a figure the courts representing use the multiplicand and the multiplier and the the annual value of the dependency, damages for The multiplicand is an approximated is divided and, secondly, In calculating method. multiplier The assessment of the trial calculations income for personal scaled the courts increase Chibuku 1 MLR 336. in determining the multiplier. Products expenses. number of years over which such dependency the period the trial. into two stages: firstly, following the period between In arriving are made on the assumption The product that the deceased of the multiplicand is deemed to continue. the date of death and the date at the proper multiplicand, the of his (starting The method adopted by would have spent one-..third and the multiplier considerations. intact 16(1) MLR 283, Banda and v Attorney General et al [1995] et al [1993] figure) is up or down, after taking into the relevant account the starting figure Mbi/a et al v Attorney General Ltd v Chunga [1987-89] 12 MLR 283 and Thindwa is to keep the multiplicand and either decrease or might have arisen of the contingencies to cut off the benefit are to do with death and marriage. prematurely. two considerations the multiplier. likely is that a lump sum is being given and that it is therefore, The first The to be invested. for which the courts decrease is that contingencies to say, for now, the most important There are basically consideration second consideration Suffice Conversely deceased's annuity However, something 16(1) MLR 283, Thindwa v Attorney General General when there is no evidence equivalent the multiplier income was ascertainable, lost for the period of the deceased may be increased to what a domestic Company Limited Insurance Civil over the years. the award for loss of dependency It should be noted that where the would be equal to the person's expected employment as to how much the deceased was earning, worker earns -Mbila et al v Attorney had he been alive. the court awards et al [1993] General et al [1995] 1 MLR 336 and Kenson Shapu v NICO Cause Number 222 of 2007. Page I 6 herein was aged 54 years. guard at Agricultural and Marketing Corporation (ADMARC) wage of K13,770.00 He was employed as security where he made a monthly care of his wife, nine children and other dependants. The deceased Development and was taking In term .of the multiplier, region Civil Limited in Malawi at 52 years. life expectancy measure adequate public based on previous might not have reached other natural servants causes. existing of 45-50 years -Emma Sitenala Cause No 1254 of 2001. Statistics released case authorities Piyano v Geoffrey state that life expectancy in this country and Prime Insurance in 2011 from UNDP pegged life expectancy is in the Company Chipungu The deceased person herein, as pegged in Malawi. as he had defied However, the predicted according to these statistics, in this case, life expectancy Retirement life expectancy. for the Plaintiff had exceeded the would not be the age in Malawi for a multiplier of 10 years is pegged at 65 years of age. Counsel However, retirement suggests this court will adopt a multiplier age when he would still be earning awards. of 7 years as the deceased as he may have died due to The court will use the multiplicand the deceased of his death, was receiving of deceased a monthly wage of MK13,770.00. person's income at the time of his death. At the time = K13,770 x 12 months in a year x 7 (multiplier) x 2/3 Special Damages =MK 771,120.00 This court will not make an award for the cost of police prove the same. Cost of police pleaded MLR 521 (HC). A Plaintiff give satisfactory who claims proof of the actual damages special loss he or she alleges and proved as required and death reports by law-Govati and death reports as no evidence was led to are special v Monica Freight damages and must be specifically Services (Mal) Limited adduce evidence [1993] 16(2) or facts which must therefore to have incurred. DISPOSAL Summary The Plaintiff of dependency is therefore and nothing KS00,000.00 damages. as special awarded of life, for loss of expectation for loss MK771,120.00 A total sum of MKl,271,120.00 is awarded in damages. Apportionment The court apportions the damages as follows: 1. Wife to deceased 2. Children 3. Sister to deceased to deceased (to be -MK 1,000,000.00 -MK 100,000.00 (Plaintiff) -MK 171,120.00 administered by deceased wife) person's Page I 7 Each party is at liberty to appeal to the Supreme Court of Appeal within the requisite time frames. Ordered in Chambers on th 19th day of May at Chichiri, Blantyre CM Mandala ASSISTANT REGISTRAR Page I 8