Andrew v Jarrel and Another (Personal Injury Cause 479 of 2012) [2014] MWHC 504 (2 June 2014)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA REGISTRY PERSONAL INJURY CAUSE NO 479 OF 2012 BETWEEN: JOSEPH ANDREW. .....ccccccsscscccssscescescoessceccscscsscssessereseesee PLAINTIFF AND KAMRAN A JARREL.....ccsssccccsscscersssevss sssvceseraes . 1°) DEFENDANT PRIME INSURANCE COMPANY LIMITED...........scscsccsessoseees 2"° DEFENDANT CORAM: HOWARD PEMBA, ASSISTANT REGISTRAR Mipande, Counsel for the Plaintiff Nthondo, Official interpreter ORDER ON ASSESSMENT OF DAMAGES This is an order on assessment of damages as against the 1* defendant, the issue of the Defendant’s liability having been settled following a default judgment that was entered in favour of the Plaintiff. The facts of the matter are uncontroverted since the 1° Defendant has not been showing up, the result of which the said default judgment was entered. Suffice to say that the Plaintiff commenced the present action claiming damages for pain and suffering, loss of amenities of life and disfigurement all emanating from the personal injuries he suffered due to the road traffic accident negligently caused by the 1** Defendant who was the driver of the 2™ Defendant’s insured motor vehicle. The particulars of said negligence and subsequent injuries have been portrayed in the statement of claim. The 1% Defendant having filed no any defence or intention to defend the action herein within the prescribed time, the said default judgment herein was hereby entered only against the 1** Defendant on 12" February 2014, wherein it was adjudged that the 1* Defendant should pay all the claimed damages together with costs of the action. The matter then came for assessment of damages on 25" March 2014. The evidence The Plaintiff testified before this court and showed the injuries he suffered. He also tendered his witness statement and other documents attached thereto in support of the assessment. It was stated by the Plaintiff that he suffered soft tissue injuries, multiple bruises and abrasions and his permanent incapacity has been pegged at 10%. The 1* Defendant did not turn up during the assessment proceedings and neither did he file any submissions in support of the assessment of damages. Thus, the evidence | have in support of these proceedings is only from the Plaintiff and i proceed accordingly. The court deals with one issue of how much should be compensated for the injuries suffered by the Plaintiff. The law Award of damages generally The law generally provides that a person who suffers bodily injuries or losses due to the negligence of another is entitled to recover damages. The fundamental principle, which underlines the whole law of damages in whatever area they are awarded, ts the principle of compensation. What this means is that the damages to be recovered must, in money terms, be no more and no less than the Plaintiff’s actual loss. The principle, as equally conceded by both parties was laid down in so many cases both local and foreign, including the cerebrated case of Livingstone vs Rawyards Coal Company (1880) 4 AC 25 in which Lord Blackburn put the position in the following terms, which | have found quite illuminating: “where any injury is to be compensated by damages, in settling a sum of money to be given as damages, you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered loss, in the same position he would have been in had he not sustained the wrong for which he is now getting his compensation or reparation.” Thus, when assessing damages, the intention of the court is to compensate the injured party as nearly as possible as money can do. However, the above principle is no more than a platitude for it is impossible to use money to restore a condition of physical wholeness of a person who has a grievous personal injury (see Yalu_vs United General Insurance Co. Lid, Civil Cause Number 18 of 2011 (unreported). Lord Morris summarized the real position in West_vs Shepherd [1964] AC 326 at 346, as follows: “Money cannot renew a physical frame that has been battered and shattered. All what judges and courts can do is to award a sum which must be regarded as giving reasonable compensation.” Comparable case law and award In his skeleton arguments filed with this court, the Plaintiff relied on a number of cases in contention that they be awarded the sum of K5,000,000.00 as compensation. The said cases, among others, are the case of Chisumu vs Chalamba and another Civil Cause Number 1434 of 2011(unreported) in which the court awarded the sum of K4,800,000.00 to Plaintiff who sustained a compound fracture of the radius and ulna as damages for pain, suffering and loss of amenities of life. Further, the Plaintiff relied on the case of Salima vs Attorney General, Civil Cause Number 1956 of 2007 where the court, on 4" November 2007, awarded K3.6million to a Plaintiff who sustained a fractured femur and a fractured ulna. The Plaintiff also cited the case of Mkwamba vs Nico General Insurance Company Ltd, whose citation has not been provided but it is revealed that the Plaintiff was awarded with the sum of K900,000.00 a deep cut wound in the head, sprained ankle and soft tissue injuries on his nose and chest. In reliance to these cited cases, The Plaintiff contends that in a bid to achieve an amicable settlement, it will be reasonable that he be compensated with K5million. | wish to thank counsel for the submission filed in support of the assessment of damages herein in which several authorities have been cited. Though | have not seen any of these cited cases, | have still given the submissions and the authorities counsels cited the consideration they deserve. | had the opportunity to appreciate with my own eyes, the injuries suffered by the Plaintiff and it is prudent that the Plaintiff should be compensated with the justifiable sum according to the circumstances. In addition, | have taken note that most of the comparable cases referred to by the Plaintiff were indeed decided some time back before the massive evaluations that have marred our currency since 2012. Thus, awarding the Plaintiff the sum similar to the one awarded before 2012 cannot be in line with the principle of fairness and reasonableness. It is trite that apart from considering the injuries suffered by the Plaintiff in light of the applicable comparable cases, the court also ought to consider loss of value of the currency with passage of time. Nevertheless, | have also seen that the injuries in most of the cited cases are different in gravity. In the cited cases, the injuries are more severe and therefore not very much comparable. That has therefore been mostly considered in coming up with the appropriate compensation. The court has therefore tried to strike a balance in all the considerable factors. Thus, In view of the injuries suffered by the Plaintiff herein and considering other comparable cases decided by this court, | am of the view that the sum of K5,000,000.00 that the Plaintiff is claiming is on the higher side. Rather, | am of the view that the sum of K1,700,000.00 will be fair, reasonable and a reflection of the injuries sustained by Plaintiff as damages for pain, suffering and loss of amenities of life including disfigurement. Special damages are also awarded to the Plaintiff as pleaded. Costs are for the Plaintiff. DELIVERED in chambers this 2™ day of June 2014 4A Howard Pemba ASSISTANT REGISTRAR