Kachisi & Anor. v United General Insurance Company Limited (Personal Injury 87 of 2017) [2017] MWHC 134 (14 July 2017)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL Injury REGISTRY Cause Number 87 of 2017 Personal BETWEEN: ALICE KACHISl KELVIN BALUTI, AND UNITED GENERAL INSURANCE a minor, ..................... .............. ............ ........... .................................................. by ALICE KACH ISi, his mother and next friend . 1 .................. ••..•.•....•.••.. ST PLAINTIFF 2No PLAINTIFF ..•.••.••••.••.•. COMPANY LIMITED ..................................................................... DEFENDANT CORAM: Ms. CM MANDALA: ASSISTANT Mr Mzumara: Counsel United Mr PW Chitsulo: Court Clerk General Insurance REGISTRAR for Plaintiff Co Ltd: Defendant ORDER ON ASSESSMENT OF DAMAGES INTRODUCTION AND BACKGROUND This is an order for assessment by the Honorable and suffering, disfigurement, pursuant of damages It was adjudged Registrar. damages for loss of amenities, report K13,500.00 Assistant to a default that Defendant judgment entered pays the Plaintiff on 10th March 2017 for pain damages damages for capacity, and costs of the action. being cost for police and medical reports damages for loss of earning loss of amenities, capacity, disfigurement, K13,500.00 being cost for police the present action loss of earning commenced The Plaintiff suffering, report on 4th January arrival and medical 2017 when the Defendant's School at Bangwe Secondary reports and costs of the action. insured The claim arose from a road accident was driving that occurred and upon along Robert Mugabe Highway he hit the Plaintiffs as they were walking on the sidewalk. on 2nd February 2017 claiming damages for pain and EVIDENCE Alice Kachisi, comes from Phalombe The Plaintiff, tendered statement her witness statement stated as follows: as her evidence and lives in Bangwe where she is a hairdresser. in chief after it had been amended. The witness She 1. I am the 1st plaintiff in this matter I am competent Baluti and Kelvin to make this statement. therefore is the 2nd Plaintiff me and who sues through Page 11 2. I am a hairdresser month and because and used to work at Naomi's salon in Limbe. My salary of this accident I lost my job and I am jobless. was K17,500.00 per 3. On the 4th of January 2017, at around 12:00 hours, fTip top nursery.) On our way home, while walking I went to pick my kid, the 2nd Plaintiff from eme near side of the road- on the extr at Bangwe Secondary School, we were hit by a vehicle registration number LA a lot of injuries and were taken to QECH where we got admitted for 1 day for school, and having arrived 9229 belonging 4. We sustained treatment 5. I sustained to the Defendant. and we have been outpatients till now. injuries the following of the 5th metatarsal bruises a. Fractures b. Chest injuries c. Multiple d. Disfigurement e. Severe chest pains 6. My child the 2nd plaintiff a. Multiple b. Head injury bruises (scars) business as before and my ability compromised. 8. I now tender the Police evidence. sustained the following injuries 7. I have chances of developing arthritis. I feel pain to the chest and the leg. I can no longer do to do household chores and any manual job has been and Medical reports marked AK1 and AK2 respectively as part of my 9. The 2nd plaintiff feels post traumatic marked AK3 and AK4 respectively. Reports headache. Attached herewith are the Police and Medical 10. I state the above verily believing the same to be true to the best of my knowledge, information and belief. Dated this 24th day of March 2017 (signed) ALICE KACH/SI The pt Plaintiff bears evidence tendered to liability reports, two police and not to injuries however, sustained the court will disregard by a Plaintiff. them as the police report tendered 05-01-2017; bundle. It stated: Treated metatarsal, The pt Plaintiff assessment hospital: base of fifth above-named examination 'wound cleaning person: a medical report from Queen Elizabeth to hospital: date discharged from Central Hospital 04-01-2017, marked AK2 in the "Age: 24. Date admitted as an outpatient from: 05-01-2017 to Now; Nature of injuries: the Name of the doctor who attended 'fracture blunt chest injury All clinical 'Orthopedic team'. bruises' analyses and multiple made: 'Head to toe full physical done.' Medical treatment and dressing, Plaster offered: Results: of Paris applied' 'pain killers.'; were performed non-weight bearing' Surgical operations 'on treatment Page I 2 Possibility of developing a patient will be able to perform p rthritis: Likely. Has d? 'No' Perma the limb shortene revious job and manual work with difficulty." nent incapacity: li kely; The K4 which st of injuries: ates: "Age: 3. Da edical report marked A The 1st Plaintiff also tendered a m hospital: 04-01-20 17, date disch 2017to ........ ; Nature the above-named person: examination 'wound cleaning shortened? change." arged from hospital: 05-01-2017; Treat 'multiple who attended 'Orthopedic treatment Results: 'No' Permanent incapacity: bruises team'. All clinical offered: 'Improved' 'pain killers.'; Possibility remarks: Surgical of developing Likely and mild head injury' analyses arthritis: post traumatic were No. Has the limb and dressing' done.' Medical ... behavior Further likely; ed as an outpatient from: 5-01- Name of the doctor made: 'Head to toe full physical operations performed te admitted to SUBMISSIONS Counsel comparable BY COUNSEL FOR THE PLAINTIFF filed written selected for the Plaintiff awards (Court submissions for the Court's only those that were comparable consideration, to the facts herein): he cited the following • Chilembwe Alliance Phiri v General 350 of 2012 where the Plaintiff pain and suffering right leg, a fracture and loss of amenities and dislocation Insurance Cause Number Injury Company Limited on 19th April 2013 as damages was awarded K7,000,000.00 between for the ankle and knee on the of life for a fracture Personal on the left ankle and head injuries. • Rose Chipala v Prime Insurance Company Limited Personal Injury Cause Number 472 of 2013 where on 13th October for pain and suffering, swollen 2015 the Plaintiff loss' of amenities on the face. right ankle and bruises was awarded and disfigurement the sum of MK4,950,000.00 as damages of the right femur, for a fracture submitted for the Plaintiff loss of amenities A further Counsel suffering, disfigurement. pain and suffering submission and loss of amenities that MK3,500,000.00 be awarded to the pt Plaintiff and loss of earning capacity and MK700,000 for pain and .00 be awarded for for MKl,000,000.00 was made that the 2nd Plaintiff of life and MK700,000.00 be awarded be awarded for disfigurement. 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 remains is the amount or value of the damages.' of damages ...... presupposes that damages have been proved. The only matter that The rule is that prior to assessment, Yanu Co Ltd v Mbewe (SCA) 11 MLR 405. Even in the face of difficulties is not disentitled -Mkumuka v Mphande (HC) 7 MLR 425. to compensation party has provided the injured -Yanu­ proof of damage sustained in assessing damages, the Plaintiff Page I 3 The cardinal principle in awarding damages is 'restitutio in integrum' which means, in so far as money can do it, the law will endeavour to place the injured person in the same situation as he was before the injury was s ustained - Halsbury's Laws of England 3 rd Ed. Vol. II p.233 para 400 . This principle was further 39, where Lord Blackburn enunciated in Livingstone said: v Raywards Coal Co (1880) 5 App Cas 25 at where any injury you should ' ... reparation has been injured sustained or who has suffered, the wrong for which he is now getting is to be compensated as nearly as possible by damages, in settling get at the sum of money which will put the party who as he would have been in had he not the sum to be given for in the same position his compensation or reparation.' The law distinguishes general damages and special damages as follows -general damages are such as the law will presume to be the direct natural or probable consequence of the action complained of. Special damages, on the other hand, are such as the law will not infer from the nature of the course Stros Bucks Aktie Bolag v Hutchinson considers if the loss is one which any other claimant (1905) AC 515. In determining the natural consequences, the court in a like situation will suffer-McGregor on Damages p23 para 1-036. Special damages must be specifically pleaded and must also be strictly proved -Govati v Monica Freight (Mal) Limited Services adduce evidence [1993] 16(2) MLR 521 (HC). A Plaintiff who claims special damages must therefore or facts which give satisfactory proof of the actual loss he or she alleges to have incurred. Where documents filed by the Plaintiff fail to meet this strict proof then special damages are not awarded -Wood Industries Cotporation Ltd v Malawi Railways Ltd [1991] 14 MLR 516. Although perfect compensation is impossible, what the plaintiff should get is fair and adequate compensation involving monetary -British Commission v Gourley loss, courts resort to awarding (1956) AC 185. Since it is difficult to assess damages conventional figures guided by awards made in similar cases and also taking into account the money value. Lord Morris buttresses this contention in West v (1964) AC 326 at 346 where he states: 'money cannot renew a physical and shattered. can do is to award a and courts All judges sum which must be regarded frame that has been as giving Shepherd battered reasonable compensation.' The court bears in mind the sentiments laid out in Steve Kasambwe v SRK Consulting (BT) Limited Personal Injury Cause Number 322 of 2014 (unreported): 'At times, obsolete because court insisted the new cases, when deciding and the rate of inflation necessarily follow the previous the court is faced with situations of currency of the devaluation where the comparative and inflation. cases have been rendered on the same level of award as was obtaining in the previous the court must take into account It would not achieve if the justice In such situation, cases. i.e. cost of living the life index, The court must therefore not and the drop-in awards but sum than the previous cases.' value of the currency. award a higher COMPENSATION Page I 4 The Plaintiffs base of fifth metatarsal, bruises and mild head injury. were hit as they were walking on the side of the road. The 1st Plaintiff sustained a fracture blunt chest injury and multiple bruises while the 2nd Plaintiff sustained multiple Pain and Suffering that which is immediately felt upon the nerves and brain, be it directly related from medical treatment necessitated by the accident while 'suffering' fright, fear of future disability, humiliation, embarrassment and sickness. See: Ian Goldrein et e and Precedents (Butterworths, 1985) 8 and City of Blantyre v The word 'pain' connotes to the accident or resulting includes al, Personal Injury Litigation, Practic Sagawa [1993] 16(1) MLR 67 (SCA). herein were walking on the side of the road when they were hit by the Defendant's insured. The Plaintiffs This must have caused some shock to the Plaintiffs not expect to get hit by cars. Further, the at Queen Elizabeth Central Hospital of Paris applied cleaned and a plaster three years of age, sustained multiple must have experienced a lot of pain and considerable Plaintiffs as they were on the sidewalk where pedestrians t required injuries tha sustained do them to spend a night had to have her wounds (QECH) for treatment. The pt Plaintiff in order to treat her fracture. and mild head injury. bruises The 2nd Plaintiff, While the 2nd Plaintiff, who is only of his youth, because discomfort and confusion pursuant to the accident. For these reasons, adequately 2nd Plaintiff. this court believes the sum of MKl,500,000.00 as damages for pain and suffering compensate the 1st Plaintiff and the sum of MKl,000,000.00 will adequately compensate will the Loss of Amenities simply means loss of faculties of pleasures of life resulting from of life' 'loss of amenities Damages for loss of amenities of life The expression one's injuries. deprived of the pleasures the loss or not. See: Poh Choo v Camden and Islington City of Blantyre 16(1) MLR 67 (SCA) at 72. v Sagawa [1993] of life, which amounts to a substantial are awarded for the fact that the plaintiff is simply is aware of loss, whether the plaintiff [1979] 2 All ER 910 and Area Health Authority of developing arthritis and that the pt but could not determine the extent. The medical report is likely the pt Plaintiff incapacitated would be able to perform tasks. The medical report states that the pt Plaintiff has the possibility Plaintiff to be permanently further states that the pt Plaintiff difficulties. Ergo, the injuries chances of developing before. Merely stating that she can no longer do business chores and any manual job has been compromised her life has been affected This court does not doubt that the 1st Plaintiff through her oral evidence however, she states and not just ride on the injury as a reason will be able to perform arthritis, through her previous The Plaintiff her ability as before and that to do household is not enough. A Plaintiff must clearly express how not to apply herself has lost some amenities, howeve as she did before. r, there is not enough job and manual work with did not explain the impact of her witness statement that she has she feels pain to the chest and leg and she can no longer do business as Page I 5 evidence as to how much. For these reasons, the pt Plaintiff as damages for loss of amenities of life. will be awarded the sum of MK350,000.00 a similar diagnosis to experience in terms of permanent post traumatic behavioural change. This is something incapacity as well as a diagnosis will have to live with for the rest of his life having acquired the said ailment age. For these considerations, the 2nd Plaintiff is awarded the sum of MKl,000,000.0 that at such a 0 for loss received The 2nd Plaintiff that the 2nd Plaintiff the 2nd Plaintiff youthful of amenities of life. was likely Disfigurement In the matter of James Chaika v NICO General that 'Disfigurement permanently which is not a pleasant disfigurement. is not a matter to be taken lightly and casually as it is something that one has to live with. In this case, the plaintiff will most likely walk with a limp for the rest of his life thing.' In this case, the Plaintiff was awarded the sum of MK300,000.00 for Insurance Co Ltd - the Honourable Justice Potani stated The court was not given a chance to inspect any oral or written adduced sustained. be difficult It will therefore was adduced to prove that the Plaintiffs made under this head. evidence the Plaintiffs on the areas where they were injured to show the extent of the disfigurement that the Plaintiffs nor was for the court to make an award under this head as no evidence were disfigured as a result of the accident. No award will be Loss of Earning Capacity of damages for loss of earning the courts have developed a method for the amount of pecuniary benefit could reasonably expect to have earned. capacity, that a plaintiff In assessment assessing This, understanding pecuniary compensation to rest in Pickett assessing damages See also Ulemu Simoko v Attorney loss; and this includes for the pecuniary -v-British for pecuniary that a claim for loss of earning future loss that she anticipates grouped capacity is In this regard, to suffer. capacity. earning in the category of heads the plaintiff of can recover full put the matter when a judge is can properly As Lord Scarman "[b]ut, be applied." [1980] Rail Engineering A. C. 136 at 168B-D, loss, the principle Civil General Cause Number 755 of 2011 of full compensation case, the plaintiff has not proved how much she was earning before at present. No evidence in loss of earning -'. I can no longer was led to show that the injuries save for a vague statement and my ability capacity do business as before This gives very little the accident, by the sustained contained in the to do household to the court to no guidance or been compromised.' would indeed result In the present indeed what she is earning Plaintiff witness Plaintiff's chores as to the effect of the injury in Nangwiya: statement and any manual job has on the Plaintiff's earning capacity. And, as Mwaungulu rightly observed the loss. is to quantify courts have regard to the plaintiff's "The next hurdle formula, come with an award. is twenty-four. award, earnings. Although it is difficult to come up with a mathematical the chance. They then evaluate after deducting earnings are K946-00 per annum Whatever for the period and it will earn income tax. He the of fifty-five up to the age years. Courts that the award is global The plaintiff's He would be in employment it must take into account Page I 6 in which the plaintiff earning capacity." could have worked. I award the plaintiff the sum of K3 000-00 for loss of The plaintiff in the present case did not present that before the accident would assist compute what amounts she would have made if she had continued uninjure d. I am faced, as it is, with real difficulty capacity. In the present case, and given the authorities, I am content to award MK250, 000.00 as damages for loss of earning capacity. or indeed no material upon which to assess future earning evidence of her earnings that I have little Special Damages are special damages Cost of police and medical reports required by law -Govati v Monica Freight Services who claims special the actual loss he or she alleges to have incurred. must therefore damages and must be specificall y pleaded and proved as (Mal) Limited [1993] 16(2) MLR 521 (HC). A Plaintiff adduce evidence or facts which give satisfactory proof of The Default Judgment Plaintiffs of MK13,SOO. OO as special damages for the acquisition being special damages for the Police entered specifically states that the sum of MK13,500.00 and Medical be awarded to the awards the sum This court therefore Reports. of Police and Medical Reports. DISPOSAL The ist Plaintiff is therefore MK350,000.00 for loss of amenities and nothing MK2,113,500.00. awarded MKl,500,000.00 of life and K250,000.00 being damages for pain and suffering, being damages for loss of earning capacity for disfigurement and MK13,500.00 being special damages. Theist Plaintiff's total award is The 2nd Plaintiff damages for loss of amenities of life. The 2nd Plaintiff's total award is MK2,000,000.00. as Costs to be taxed. as damages for pain and suffering and MKl,000,000.00 MKl,000,000.00 is awarded Each party is at liberty t o appeal to the Sup reme Court of Appeal within the ime frames. requisite t Ordered in Chambers on the 1 4th day of July 2017 at Chichiri, Blantyre ASSISTANT REGISTRAR Page I 7