Jasi v Kam'baule and Prime Insurance Company Limited (Personal Injury Cause 556 of 2020) [2021] MWHCCiv 8 (29 July 2021)

rz A IN THE HIGH COURT OF MALAWI CIVIL DIVISION PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 556 OF 2020 PRECIOUS JASI Between _ and _ MR. DALITSO JKAM'BAULE PRIME INSURANCE COMPANY LIMITED CORAM: Austin Jesse Banda, Assistant Registrar Master, for the Claimant None for the Defendants Kazembe, Clerk/ Of Ce eler CLAIMANT 1° DEFENDANT DEFENDANT JUDGMENT ON ASSESSMENT OF DAMAGES Background By a default judgment Precious Jasi (claimant) was awarded damages and costs of action against Mr. Dalitso Kam'baule and Prime Insurance Company Limited (defendants). This is in relation to the injuries that he sustained following a road accident that occurred at Makala Bus Stage attributed to the wrong of the defendants in their respective capacities. The Court I heard the claimant for assessment in ordered that the Registrar should assess the damages. the inexplicable absence of the defendants who had notice. Evidence The court heard from Precious Jasi that he sustained a fracture ofthe lefi humerus, bruises on both knees and right elbow joint, cut wound on the foot and facial bruises. He said that he was talcen to the hospital where he was admitted and given treatment. He tendered a medical report. 1 of 4| Page The claimant stated further that he was at risk of developing arthritis as a result of the injuries and that he had reduced ability to participate in sporting activities and in performance of household chores. He said the degree of permanent incapacity was assessed at 23%. He said that he incurred expenses to procure a medical report and a police report at K13, 500.00. Precious Jasi prayed for compensation for pain and suffering, disfigurement and the sum of K13, 500.00 that he spent to procure the reports, loss of amenities of life, issue The only issue at this stage of the proceeding is the amount of damages that the claimant should be paid with as compensation. Analysis. The starting point is that assessment of damages presupposes that damages have been proved and the business that remains is the measure of the amount of the damages- see the case of Ngosi ta Mzumbamzumba Enterprises v. Amosi Transport Co Ltd [1992] 15 MLR 370(HC). The rule is that the injured party has provided proof of the damage sustained prior to the assessment hearing- Yanu Yanu Co Ltd v. Mbewe 11 MLR 405 (SCA). Damages in a case like this one, are not awarded to punish the defendant or tortfeasor, but to fully compensate the claimant of all the losscs that he has suffered as a direct or In the case of George consequential result of the defendant's wrongful act or omission. Kankhuni v. Shire Buslines Ltd, Civil Case Number 1905 of 2002, Katsala, J stated as follows: "The law demands that the plaintiff, as far as moncy can do it, be put in the same position as if he has not suffered the loss. This is what is referred to as restitution in infergrum. It is not easy to quantify damages for losses that are not monelary in nature such as personal injuries, Courts as such use comparable cases as a guide to the quantification of applicable damages, without losing sight of particularities in the individual case that the court is dealing with. See Chipeta y. Dwangwa Sugar Corporation, Civil Cause No. 345 of 1998, High Court, Principal Registry (unreported), The court will also consider factors such as passage of time since a particular comparable award was made, as well as currency fluctuations within the period between the case at hand and the comparable one- Hon. Kkennedy Kuntenga y, Aftorney General, Civil Cause No. 2002 of 2002, High Court, Principal Registry, (unreported), Pain and Suffering. 2Zo0f4age The word pain connotes that which is immediately felt upon the nerves and brain, be it treatment necessitated by the directly related to the accident or resulting from medical accident, while suffering includes fright, fear of future disability, humiliation, embarrassment Injury Litigation, Practice and Precedents and sickness- (Butterworths, 1985) p&. The award of damages for pain and suffering depends upon the claimant's personal awareness of pain, and his capacity for suffering- see Limpoh Choo y. Camden and Islington Area Health Authority [1980] AC 174 @ 183. Ian Goldrein et al, Personal Loss of Amenities of Life Damages are paid under the head of loss of amenities of life to compensate the claimant's deprivation of the pleasures of life, which amounts to substantial loss, whether the claimant is aware or not of that loss. See City of Blantyre v. Sagawa [1993] 161) MLR 67 (SCA); Kemp and Kemp, The Quantum of Damages, Vol. 1 (2 Edition), 1961, p. 624. Disfigurement is concerned with change of looks of the individual. This may be scars, Disfigurement amputations and postures. Sce Lemon Banda and 19 others v Motal Engil Limited and injury cause number 178 of 2012 General Alliance Insurance Limited, personal (unreported. Damages for disfigurement are awarded separately if the Claimant has been in in need of plastic surgery. See Mary ridiculed, Kamwendo v Stage Coach Malawi Limited Civil Cause Number 840 of 1995. lost his social status, or that he is Injuries in this Case The claimant's evidence is uncontroveried and therefore taken wholesale. do not have any reason to doubt it, It is Comparable Cases In the case of Raphact Luagu v Prime fnsurance Company Efd. Civil Canse No. 2025 of or pain and suffering, loss of amenities of V4 2010 (unreported); an award of life, and disfigurement fora fractured distal humerous open fracture of radius and ulna, Uhe award was made on the 17th May, 2012. In Issa Idrissah vy. Daniel Ndawala & Prime Insurance Co Ltd, Personal Injury Cause 1 Claimant who suffered a dislocation of the left hip, a cut on the forehead No. 67 of 2017, and another cut on the eye lid and multiple bruises on the left leg was awarded the sum of K2,400,000.00 for pain and suffering, K1, 500,000.00 for loss of amenities of life, and K1,000,000.00 for disfigurement in March, 2019. 3of4| Page In Christina Mande v Charter Insurance Company Limited, High Court, Principal Registry, Personal Injury Cause Number 329 of 2016. The Plaintiff sustained a fracture of the right femur (inclusive of the knee cap), dislocation of the right hip joint, cuts on the head and Jost consciousness on the spot of the accident. Surgery was performed on the patella/knee The Plaintiff was awarded cap and metal MK6,300,000.00 for pain and suffering, loss of amenities of life and disfigurement. inserted to hold the joint together. rods The Award Considering the above cited comparable cases in light of each case's peculiar circumstances, I award the claimant the sum of K3, 000,000.00 for pain and and the time of the awards, suffering, K.1,500,000.00 for loss of amenities of life. I award him the sum of K1,000,000.00 for disfigurement. He is only awarded K5,000.00 special damages as there is evidence that the police report was given on payment of that sum under general receipt number 6734815. The expense for a medical report is not proved. Conclusion The Claimant is awarded a total of K5, 505,006.00 for the personal the road accident. The Claimant is further awarded costs of assessment. injurics he sustained in Made this 29" day of July, 2021. aus Austin Jesse Banda ASSISTANT REGISTRAR Aof4| Page