John and Another v Attorney General (Personal Injury Cause 228 of 2022) [2023] MWHCCiv 25 (4 July 2023)

“Iw THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION PERSONAL INJURY CUASE NO, 228 OF 2022 BETWEEN:- CHRISTINA JOHN AND KELNESS KAWOWA (Administrators of the Estate of Juwawo Sawasawa (Deceased)])..sersssreresresreeererersererererers es CLAIMANT -AND - ATTORNEY GEN WRAL escsscesersessersseesssersssseensenerenssaseeonerees DEPENDANT Coram: Brian Sambo, Assistant Registrar Miss Emily Kusani, of counsel for the Claimant Mr, Matola, of counsel for the Defendant Mr, M. Mhango, Court Clerk/ Official Interpreter JUDGMENT ON ASSESSMENT OF DAMAGES Introduction | The Claimants, on 6” December, 2022 obtained a default judgment for the following; i. Datnages for loss of expectation of life. ii. Damages for loss of dependency ij. MK12,500.00 being special damages for costs of a Medical Report and a Police Report and 7 iv. Costs of action. - Christina John and Kelness Kawowa vs Attorney General, Personal Injury Cause No, 228 of 2022. ~ Brief Facts of the Case ~ On 26! May, 2023, | heard evidence on assessinent from the 1% Claimant, in _ presence of the Defendant. This is now my returti'to give my judgment on the sil Magombo was driving motor yehicle regis — On'22n¢ July, 2022, Mr. Bin pO tration - “muinber MG209AK ‘Toyota Hilux Double Cubin tro 5 Michet heading towards Balaka with one passenger on board, He was driving along the’. M1 Road, On artival at Msiyaludau ADMARC Junction, he hit a crippled man on* a wheel chair called Juwawo Sawasawa due to over-speeding. The lame casualty was, at that time, being pushed across the road by one Timothy Bule, Following the impact, the man was severely injured and was, immediately rushed to the hospital but was pronounced dead on arrival at Balaka District Hospital. Death was due to severe head injuries. Evidence on Assessment Although there are two Claimants, evidence was only obtained from the 1st Claimant, Christina John. Counsel for the Claimants asked the court to use the ist Claimant’s evidence; as it was the same with that of the Qnd Claimant. She adopted, in its entirety, her pre-recorded witness statement as her evidence, In cross-examination, she told the court that her husband was doing a piece work in a Roman Catholic Church. She said her husband was into arts and crafts; that he was good at making Roman Catholic Rosaries, and that the church-was paying him MKs0, 000.00 per month. She said she had no evidence to show the court as proof that the money was being paid by the church, and that it was being paid on monthly basis. She added that her husband was also a shoe-cobra; that he was good at ghoe-repairing. That he was also getting income from his shoe-mending business but could not specify the amount of ‘money realized from the business. Submissions Counsel for the Claimants’ prayer was as follows: i MK4,000,000,00 to be awarded as damages for loss of expectation of life ii, MK8,400,000.00 to be awarded as damages for loss of dependency ii, MK12, 500,00 to be special damages for procuring the Police Report and the Death Certificate. iy. To be awarded costs of action. Christina John and Kelness Kawowa vs Attorney General, Personal injury Cause No. 228 of 2022. Issues for Determination. - 7 ms 4 ‘The hearing was conducted to uses the amount of damages payable py the Loss of Rupectation of Life ‘The principles for the award ‘of damages fot Defendants under the heads listed above. | ‘the loss of expectation of life were. enunciated in Benham vs Gambling [1941] 1 ALL ER 7, that when assessing ~ damages generally, the court is engaged in an exercise of trying to put a value to the loss or damage suffered by the Claimant. See Chrissy Chirwa and another vs Prime Insurance Company Limited, Civil Cause Number 550 of 2018. In a claim for expectation of life, the first question therefore ought to be what is it that the | Claimant lost? It is that which the Claimant has lost that must be valued. It has been held that it is the prospect of a predominantly happy life that has to be valued, hence the damages are in respect of loss of a measure of prospective happiness, taking into account the ups and downs of life depending on circumstances of each individual life, It is not the prospect of the length of days that is to be valued. According to The court will assess these based on previous comparable awards. In John Chirwa vs Alfred Majamanda, SMEDI and Prime Insurance Co. Civil cause No. lof 2016, the court awarded the sum of Ki, 500,000 for loss of expectation of life. In a more recent case of Margaret Potani vs Edred Phiri and Prime Insurance Co. Ltd, Civil cause no. 869 of 2015 the court awarded a sum of K1, 200,000 for loss of expectation of life. the life of the deceased herein was quite valuable. he evidence has it that, although he was crippled and bound to a wheel chair, he was of great service to the Roman Catholic Church as he was making rosaries, and so too to the community at large as he was repairing people’s shoes. It is much better to allow such. a life more days on earth rather than short-cut it through negligence. Considering the above case authoritics, circumstances and devaluation of the Malawi Kwacha that has been taking place since 2021, | award the Claimant a sum of MK4, 000,000 being damages for loss of expectation of life. Damages for loss of Dependency A claim for loss of dependency is founded on sections 3 and 4 of the Statute Law (Miscellaneous provisions) Act. The value of dependency is expressed as the Christina John and Kelness Kawowea vs Attorney General, Personal Injury Cause No, 228 of 2022. amount of pecuniary, benefit which the dependent could reasonably expect: to: “the untimely death, 900 receive from the deceased in future. The’ general. principle govertiing loss: of ~ ~_ dependency is that the dependents are entitled to’ such‘ suri as will nake good | to them the financial loss which they have suffered and will suffer as a result of foe yard to be made for loss of dependency the courts use what is aoa esce the tmultipticand and multiplier formula (See Dimingw & others vw 749 of 2012 (unrep)). To arrive at the award to be made for | Attorney General, Personal Injury Cause No, The multiplicand is a figure representing the deceased’s monthly earnings whereas the multiplier is an estimated number of more years the deceased would have lived if it were not for the wrongful death, For the multiplicand, the court looks at the deceased’s earnings at the time of death. Then a reduction of two third of the product is made to take into account sums the deceased would have expended on purely personnel pursuits and expenses. The witness testified to the effect that her husband was making some income from Catholic Rosaries making as well as from shoe-repairing business. Unfortunately, the witness did not bear any evidence to that effect. She mentioned MK50, 000.00 per month as being the amount her husband was earning from a Roman Catholic Church. She did bring any evidence in support of the fact that her husband was earning that amount, and that was earning it by reason of a permanent employment, Somehow, during cross-examination she told the court that it was not a permanent employment but a piece work. These facts do not allow this court to adopt the MKSO, 000.00/month as an amount of income that was being made by the deceased in his life time. In the present case, the only rational conclusion to make is that the deceased was not employed, In this case what can be used is the minimum wage for a rural worker who is currently at MKS0, 000.00 net per month. See https: / /mywage.org/malawi /salary/ minimum-wages accessed at 11,06 AM on 4th July, 2023, See section 21 of the Employment Act. The man died at the age of 45 years. According to World Health Rankings 2023, life . expectancy — for males in Malawi is 62.3 years. See https:/ /www.world! ifeexpectancy,com/ malawi-life-expectancy accessed at 10 AM on 14% July, 2023. It is also true that the deceased could have died of other vicissitudes of life. A man can die from various factors, and a road accident is just one of those things. I will therefore reduce his life expectancy to 20 years. Christina John and Keiness Kawowa Vs Attorney General, personal Injury Cause No. 228 of 2022, “dependency, 0.) - Generally, special ~ Going by the formula, the amount will be MKB, 000,000.00 (MESO, 000:00 x20 x 12 x 2/3). This is what the beneticlaties at ~ General ecial: damages ~~ General Farming Limited v C proven, See. There is evidence that the Claimants spent MK12, 500.00 in obtaining'a Police. - ‘Report and Death Certificate. This amount has to be refunded by the Defendant. Costs The Claimants were also awarded costs. These are discretionary upon the court. L have looked at the court record and fully appreciated the level of work output staged by counsel for the Claimants. This was not a complex and novel matter; it did not require special skill and knowledge on the part of counsel ~ see Order 31 of the Courts (High Court) (Civil Procedure) Rules, 2017. To that end, { award MK4, 500,000,00 as Party and Party Costs. Conclusion In conclusion, the Claimants are awarded MK16, 512, 500.00 being damages covering all heads above; inclusive of costs. This whole sum is payable within 30 days from today. Made in chambers today Tuesday the 4% day of July, 2023. Christina John and Kelness Kawowe vs Attorney General, Personal Injury Cause No. 228 of 2022,