Katemana v Chimulambe and 1 other (Personal Injury Cause 182 of 2020) [2021] MWHC 389 (24 November 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE No. 182 of 2020 BETWEEN: ANNIE KATEMANA (suing as litigation guardian fer EMMANUEL KATEMANA (MBIMOT) }.......0..ccccsscsesseosseceencsensaes S84 000s0 000000003000 000 stu ste asa tanvoncentesececens CLAIMANT AND PATRICK CHIMULAMBE..csscosceoes «e sotsancasoceessnsensecaee vovove 157 DEFENDANT PRIME INSURANCE CO. LTD..00.0.0.-... ot sc ereaessncoecsscoasaosas sscoreeee de? DEFENDANT CORAM Mrs T. Soke : Assistant Registrar Ms Namonde : Counsel for the claimant Mr Chisale : Counsel for the defendant Ms Sawelengela —_: Counsel for the defendant N. Munthati : Court Clerk ASSESSMENT ORDER This is an order on assessment of damages following an order dated 2g! May 2021 to enter judgment on liability against the defendants, The claimant commenced the action through a litigation guardian against the defendants claiming damages for pain and suffering, loss of amenities of life, disfigurement and costs of the action. The facts aver that on or about 6" April 2019, the 1* defendant was driving a motor vehicle registration number RU 5075from the direction i of B& C heading towards Ndirande Market along the Ndirande Ring Road when upon reaching at Namwalimwe Primary School he hit the claimant who was crossing the road from the right to left in consequence wherefore the claimant sustained severe injuries, In evidence, the litigation guardian stated that the claimant sustained an open fracture of the tibia and fibula, degroving wound on the dorsal aspect of the right foot, multiple head injuries. The witness stated that he went to theatre 7 times for operation on the wound and changed Plaster of Paris 7 times. The skin grafting was done and he walks with a limp. He is now mentally challenged. In cross examination, the witness confirmed that the claimant walks with a limp and feels pain. She stated that the claimant was 5 years old when he got injured in the accident. She said the claimant was 8 years old. She stated that after the accident, the witness noticed that the claimant was mentally affected as he was always absent minded. In submissions, Counsel for the claimant submitted that the claimant should be awarded k.6,000,000.00 as damages for pain and suffering, K3,000,000.00 for loss of amenities of life and K2, 000,000.00 for disfigurement. On the other hand, Counsel proposed that the claimant should be awarded a sum of K4,000,000,00 as damages. Both Counsel cited authorities that have helped this Court to arrive at a fair decision, In the present matter, the evidence shows that the claimant sustained a fracture of the tibia and fibula on the right leg, a degroving wound on the ri ght foot. The claimant underwent the process of wound debridement and the Plaster on Paris was applied on the claimant. Looking at the nature of the injuries and the age of the claimant (6-year-old child at the time of the accident) it is undisputable that the claimant went through severe pain and suffering. The nature of the injuries in this case were serious and despite that the wounds healed, the claimant still experiences pain when walking. It is also in evidence that the wound lett a scar on the claimant which means the claimant has been disfigured. 1 saw the scar which was very big and this has left a disfigurement on the claimant. Moreover, the claimant walks with a limp. Besides, it is clear in the medical report that the claimant will always have difficulties to perform manual work and even enjoy doing some sporting activities. About the mental challenges that the claimant js facing, the same have not been substantiated by evidence. Counsel for the claimant cited a case of Them Alfred vss General Alliance Insurance Co, Lid Personal Iniury Cause No. 656 of 2018 where the claimant suffered a fractured leg and acm, swollen leg and could not walk for a long time. The Court awarded the claimant a sum of K2,5000,000.00 as damages for pain and suffering, 1,450,000.00 as damages for loss of amenities of life and K.1,200,000.00 as damages for disfigurement. The award was made on 20" August 2019. Counsel for the defendant cited a case of Henry Manyowe vs Timothy Phiri and Prime Insurance Co. Lid Personal injury Cause No. 139 of 2012, where the claimant suffered an open fracture of the tibia on the ieft leg and head injuries. He was admitted for 9 days and the leg became deformed. He could not walk properly and used a stick instead. The Court awarded the claimant sum of K2, 800,000.00 as damages. ‘The award was made on 15" April 2013. Considering the nature of the injuries that the claimant suffered, the pain and suffering that he went through, the authorities cited by both parties and the devaluation of currency, | award the claimant a sum of 1%6,000,000.00 as damages for pain and suffering and disfigurement and K1,500,000.00 as damages for loss of amenities of life. The 2"! defendant will pay up to the policy limit. Costs are for the claimant. T. Soko Assistant Registrar