Mabedi v Mbingwani & Anor. (Personal Injury Case 997 of 2014) [2019] MWHC 15 (14 January 2019)

The Judiciary IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 997 OF 2014 Between SANDIKONDA MABEDI. ................................................................ CLAIMANT -and- HURGSON MBINGW ANI .................................................... ... 1 ST DEFENDANT PRIME INSURANCE COMP ANY LIMITED ............................ .. 2No DEFENDANT CORAM: Austin Jesse Banda, Assistant Registrar Mr. D. Jere, for the Claimant Mr. Chipembere, for the Defendants Ms. Madalitso Galafa, Clerk/ Official Interpreter Banda, Assistant Registrar ORDER ON ASSESSMENT DAMAGES Background A consent judgment settled the issue of liability between the two parties. It was endorsed by the court on 23rd November, 2017. The consent judgment is in the following terms: 1. Judgment BE and is HEREBY entered against the Defendants for damages for pain and suffering, loss of amenities of life, disfigurement and special damages as pleaded. 2. The said damages be assessed by the court at a date to be fixed, provided that if the said damages as assessed shall exceed KS, 000, 000.00 the 2nd defendant shall only be liable to pay KS,000,000.00 being its policy limit with its insured and the remainder shall be paid by the 1st defendant. 3. Costs be for the Claimant to be taxed if not agreed. Page 1 of 5. Sandikonda Mabedi v. Mbingwani & Prime Insurance. P. I. Cause No. 997 of 2014 <Assessment Order> Banda, Ast. Reg I heard the parties for the purposes of assessment of damages. There was only one witness, the claimant himself. The defendants did not all any witnesses. Through counsel they cross examined the claimant and asked for time to file written submissions that did not come on lapse of the time given. Evidence Sandikonda Mabedi told the court that he was injured in a road traffic accident at Mulanje PUMA filling station. He said that as a result of the accident he suffered multiple bruises on the right hand, left foot and right leg but also an injury to the right knee joint. He said that he was treated at Mulanje District Hospital where he underwent excessive pain and suffering and iodine dressing of the wounds. He tendered a police report and also a medical report. He prayed to be compensated. In the medical report, the author, Mr. Danford Nindi, a Senior Clinical Officer stated that the claimant had a 10% degree of permanent incapacity, but that he will be able to perform manual labour and that he would perform his previous job. It was stated that he can do sports, read and perform household chores. It was further stated that there was no need for further examination. In cross examination, the claimant told the court that he was able to do the roles that he would do before except for the scars that he was left with. Issue The amount of damages that the claimant should be awarded in compensation for the personal injuries he suffered as a result of the negligence that the defendants are liable of. Analysis Damages are the remedy that is open to a victim of a wrongful act of another. With general damages courts do award them not to punish the defendant or tortfeasor, but to fully compensate the claimant of all the losses that he has suffered as a direct or consequential result of their wrongful act or omission. In the case of George 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 money 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 intergrum. " It is not easy to quantify damages for losses that are not monetary in nature such as personal injuries. Courts as such use comparable cases as a guide to the quantification of applicable Page 2 of 5. Sandikonda Mabedi v. Mbingwani & Prime Insurance. P. I. Cause No. 997 of 2014 <Assessment Order> Banda, Ast. Reg damages, without losing sight of particularities in the individual case that the court is dealing with. See Chipeta v. 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. Kennedy Kuntenga v. Attorney General, Civil Cause No. 2002 of 2002, High Court, Principal Registry, (unreported). Pain and Suffering The word pain connotes that which is immediately felt upon the nerves and brain, be it directly related to the accident or resulting from medical treatment necessitated by the accident, while suffering includes fright, fear of future disability, humiliation, embarrassment and sickness Ian Goldrein et al, Personal Injury Litigation, Practice and Precedents (Butterworths, 1985) p8. 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 v. Camden and Islington Area Health Authority [1980] AC 174 @ 183. Disfigurement Damages are paid under the head of disfigurement for the change in the physical form of a person injured either as a result of the impact of the injury or its treatment, such as a scar coming in as a result of surgical operation necessitated by the injury. It is a change in appearance but it is capable of limiting a person from doing certain things as was observed by the court in the case of Austin Julius v. Rasika Gunawardena and General Alliance Limited, Personal Injury Cause Number 316 of 2014. Potani, J, in the case of Chingamba v. Deerless Logistics Limited Civil Cause No. 2888 of 2007, stated that disfigurement was not something to be taken lightly and casually as a person lives with the deformity for the rest of his life. In Zaina Chipala v. Dwangwa Sugar Corporation Civil Cause Number 345 of 1998, High Court, Principal Registry, per Chimasula, J, it was held that money cannot renew a physical frame that has been battered and shattered. The courts must therefore award a sum that is regarded as reasonable compensation. 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] 16(1) MLR 67 (SCA); Kemp and Kemp, The Q uantum ofdarnages, Vol . ](2nd Ed)., 1961,..12.:.!i.24.~ Page 3 of 5. Sandikonda Mabedi v. Mbingwani & Prime Insurance. P. I. Cause No. 997 of 2014 <Assessment Order> Banda, Ast. Reg Finding on the Injuries in this Matter The evidence of the claimant is unchallenged on the type of injuries that he sustained. It is my finding therefore that the injuries the claimant stated as backed by the medical report are the injuries he sustained. I further find that he has been healed completely of the injuries and bruises that he only has been left with scars as the only aftermath of the injuries. Comparable Cases Counsel for the claimant cited the following three cases as comparable cases. The first was the case ofDuncain Mussa V. Judith Chimatiro and Prime Insurance Co Ltd, Personal Injury Cause No. 97 of 2014 where the claimant suffered a painful back, a painful chest, a painful knee and ankle and the court made an award on 18th August, 2015, ofK2, 400,000.00 for pain and suffering and loss of amenities of life and disfigurement. The second case cited was that of Habet Lidaka v. Charles Remoortere and Prime Insurance Co Ltd, Personal Injuries Cause Number 124 of 2015 the claimant was awarded the sum of K2, 300,000.00 as damages for pain and suffering and loss of amenities of life. the award was made on the 16th July, 2015 . The injuries sustained by the claimant in this case were soft tissue injuries, multiple body wounds, bruises and abrasions and general body pains. Lastly counsel cited the case of Watson Sakwiya v. Geoffrey Wazingwa and Prime Insurance Co Ltd Personal Injury Cause No. 1311 of2015 where the plaintiff suffered deep cut wounds in the palms and also painful legs, the court awarded him K2,000,000.00 on 13th October, 2015, as damages for pain and suffering and loss of amenities of life. In an award made on 20th July, 2012, a claimant who suffered a sprained right ankle and had multiple bruises such that she was admitted in hospital for a day was awarded K2,000,000.00 for pain and suffering and loss of amenities of life- see Patricia Demesani Bannet v. Isaac Lizimba and Another, Civil Cause No. 811 of 2011 (unreported). Determination In all the above comparable cases I find that the injuries though comparable were a bit serious than the injuries in the case at hand. In this case there was not a serious wound just multiple bruises and soft tissue injury on the back of a knee. The Senior Clinical Officer put the degree of permanent incapacity at 10%. I wonder where that comes from given the claimant was completely healed needing no further attention and can perform both manual and any other type of job he was doing before. There is no evidence of any loss in the enjoyment of pleasures he was enjoying before. He has only noticeably been left with scars where there was bruising. Page 4 of 5. Sandikonda Mabedi v. Mbingwani & Prime Insurance. P. I. Cause No. 997 of 2014 <Assessment Order> Banda, Ast. Reg . . In light of the above comparable cases and facts of this instant case, I make an award of Kl,500,000.00 for pain and suffering, a nominal K30,000.00 for loss of amenities of life and K250,000.00 for disfigurement. I also award the sum of K13, 500.00 as special damages for the police and medical reports. Conclusion The claimant is hereby awarded a sum of Kl, 793,500.00 as damages for the personal injury that he suffered as a result of the negligence of the pt defendant and 2nd defendant's insured. The defendants should also pay costs of the assessment hearing. Made this 14th day of January, 2019. Austin Jesse Banda ASSISTANT REGISTRAR Page 5 of 5. Sandikonda Mabedi v. Mbingwani & Prime Insurance. P. I. Cause No. 997 of 2014 <Assessment Order> Banda, Ast. Reg