Macheka v Charter Insurance Company Ltd (Personal Injury 110 of 2018) [2018] MWHC 769 (5 July 2018)

... \HIGH couRT \ .._1SRAAY j • • The Judiciary IN THE HIGH COURT OF MALAWI PRINCI PAL REGISTRY PERSONAL INJURY C AS I( N UMBER 110 OF 2018 Between MRS. A GREY MACI-IEKA ........................................................ .... CLAIMANT CHARTER INSURANCE COMPANY LP> 1 lTED .........•...••.•....... .•.•.. DEFENDANT - an <l- CORAM: A. J. Banda, Assistant Registrar Mr. M. Msuku, for the Claimant None present, for the Defendant Mr. Mbekeani, Clerk/ Official Interpreter Banda, A. R 1. Background ASSESSMENT ORDER Mrs. Agrey Macheka obtained judgement in default of a defence on 30th May, 2018 that the defendant should pay damages for pain and suffering, damages for loss of amenities of life, damages for disfigurement, and that the defendant should reimburse the Claimant's medical expenses; all these damages to be assessed by the court. Costs were also held for the claimant. The matter came before the deputy regi strar for assessment of damages on 28th June, 2018 but it was adjourned at the insistence of Mr. Ch idothc who was acting for the defence. A specific date was given, the 3rd day of July, 2018, for the assessment hearing. Despite knowledge of the date and time, the neither the defendant nor its counsel appeared. The court proceeded to hear the claimant in the defendant's inexplicable absence. Page 1 of 4 I Macheka v. Charter Insurance Co. LI d Persona l Injury Cause 110 of 2018 <Assessment Order> Banda, A. R. 2. Evidence The claimant was the only witness in the assessment hearing. She adopted her witness statement, under oath, in which she stated that she was travelling in a motor vehicle that was insured by the defendant which was involved in an accident because of the negligence of the defendant. Mrs. Macheka said that as a resu It of the accident she suffered fractures on both legs, deep cuts and bruises. She further said that she was failing to walk properly and she could not carry her usual chores as she used to and that she was permanently incapacitated and disfigured. 3. Issue The issue of liability having being resolved by the judgement in default entered on 30th May, 2018, the only issue in this proceeding now is the quantum of damages applicable, given the circumstances. 4. Analysis of Law and Evidence Damages are the remedy that is open to a victim of the wrongful act of another. Courts do award damages not to punish the defendant but to full y compensate the claimant of all the losses she has suffered. In the case of G eor ge Kan kh un i v. Shire lluslines Ltd, Civil Case Number 1905 of 2002, Katsala, J stated as foll ows: "The law demands that the plaintiff [now called the Claimant], as far as money can do it, be put in the same position as if he has not su ffcred 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 damages, without losing sight of particul ari ties in the individual case that the court is dealing with. See Chipeta v. Dwangwa Suga r C orp oration, C ivil Cau se No. 345 of 1998, High Court, Principal Registry (unreported). The court w ill 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 fe lt upon the nerves and brain, be it directly related to the accident or resulting from me".· ·al treatment necessitated by the accident, while Page 2 of 4 I Macheka v. Charter Insurance Co. Ltd Personal Injury Cause 110 of 2018 <Assessment Order> Banda, A. R. suffering includes fright, fear of future disability, hum iliation, embarrassment and sickness Ian Goldrein et al, Personal Injury Liti gatio n, Practice and Precedents (Butterworths, 1985) p8. 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, w hi ch amo unts to substantial loss, whether the claimant is aware or not of that loss. See City of Blantyn· '· Sagawa [1993] 16(1) MLR 67 (SCA); Kemp and Kemp, The Quantum o(damages. V< l, I ( ' 1/ Ed)., 1961 . p.624. 2 Disfigurement Damages are paid under the head of di sfi gurement for the change in tl1c physical form of a person injured either as a result of the illl p, 1:t of the inj ury or its treatme nt, such as a scar coming in as a result of surgical operc1,i,) 1 necessitated by the inju ry. It is a change in appearance but it is capable of limiting a jll'I"; . 1 fro m do· ng certain things as was observed by the court in the case of Austin Juli us v. asika Gunawardena and General Alliance Limited, Personal Injury Cause Num ber . 1 16 of 2014. Potani, J, in the case of Chingamba v. Dcnlc~s Logistics Limited Civil C ause No. 2888 of 2007, stated that disfigurement was not sm, · .. ing to be taken li ghtly and casually as a person lives with the deformity for the rest o." . · · li!'c. ln Za ina Chipal a v. Dwangwa Sugar I '. J98, J l igh Court, Prin cipal Registry, per Corporation Civil Cause Number 3-4 :. Chimasula, J, it was held that money c, •. 1. renew a physical frame that has been battered and shattered. The courts must therefo re ,iWard a sum that is regarded as reasonable compensation. Injuries in this case The evidence of the claimant has not been cl ,dlcnged at al l as she was not cross examined and the defendant did not put on record ,L , trary ev;dcnce. The claimant had both legs fractured, and the had deep cuts on both .c, ;he has very a big scar just below the knee of her right leg and also just above the right heel. Comparable Cases In Zuze Bonjesi v. Prime Insurance C o. L1 No. 488 of 2011 , the plaintiff suffe red , . bone and tendons and a deep wound o n , 000.00 for pain and suffering. This award "'-··' made on 17th July 201 2. , H igh C ou rt, Principal R egistry, Civil Cause ·re of the left tibia, a big wo und exposing the .i t leg. She was award ed the sum of K7, 000, · In the case of Jack Pangani v. R eal In su ra nce Co. Ltd. H igh Cou rt, P rincipal Registry Civil Cause No. 235 of 2012, the pl a in tiff ;1,,d suffered a fracture in the leg and had a metal Page 3 of 4 I Macheka v. Charter Insura nce Ci. , • ~ Perso nal Injury Cause 110 of 2018 <Assessment Order> Banda, A. R. rod placed in the leg and the degree of incapaci ty was put at 30% was awarded K 7, 500, 000.00 for pain and suffering and loss of amenit ies. In Mavuto Luka v. Prime Insurance C o L td . High Court, Principal Registry, Civil Cause Number 91 of 2013, the plaintiff suffered a fracture and the court awarded him K6, 500,000.00 on 22nd July, 2014. I have considered the injuries of the claimant here-in in comparison to the ones in the comparable cases. I am of the opinion that KG,00,000.00 is adequate compensation for pain and suffering, and Kl,000,000 .00 for loss of :11nenities of life. For disfigurement, the court in the case of Elida Bello v. Prime Insura nce Co Ltd, Civil Cause No. 177 of 2012, made an award of Kl, 000,000.00. This court in the case of awarded Kl , 500, 000.00 for disfigurem ent. I saw the scars the claimant has because of the injury. They arc 1,ugc and have changed her significantly. I award the sum of Kl, 500,000.00. 5. Conclusion In conclusion, the claimant is awarded K8, 500,000.00 damages for pain suffering and amenities of life and disfigurement. She is ,. , ··o a warded costs of the assessment hearing. Made this 5th day July, 2018. Austin .f PSS C Banda ASSISTA 1T REGISTRAR Page 4 of 4 I Macheka v. Charter Insurance Co. Ltd Pe rsonal Injury Cause 110 of 2018 <Assessment Order> Banda, A. R.