Makuni & Ors. v Katunga & Ors. (Personal Injury 741 of 2015) [2018] MWHC 765 (30 July 2018)

_..,..._ _____ _, _____ A l l f /V6~ I HIG .... COURT l .r f..113HAfl'Y °\ .... _~......._ ............... ~~.,............~"" REPUBLIC OF MALA WI IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PERSONAL INJURY NO. 741 OF 2015 BETWEEN MAR YLENE MAK. UNI .. ...... ............. . .. .... .. . .. ... .. ... . . .......... ........ .. ... . . . .. .. . 1st CLAIMANT WILLIE KUDZALA . .... ..... . ......... .... .. .. ... ................... .... .. .. . ... .... .... .. .. .. 2 nd CLAIMANT MR. S. J. MAK UNI. ...... . ...... ... .. . .. . ..... .... .. . ..... ... ......... . ....................... .. 3 rd CLAIMANT CHARLES MSIYA ..... ..... . ......... ..... . ... ........ .... .. ......... ... ....... .. ....... .. .... .4th CLAIMANT AND ABRAHAM KA TUN GA ... ......... .. ....... ....... .. .... .. ............. ... ......................... ist DEFENDANT UNITRANS MALA WI LTD . .......... .. .... ... .. . ...... ... .. . .. ... ..... .. .. ... ... ... . ... .. . . 2 nd DEFENDANT NICO GENERAL INSURANCE COMPANY LTD ........... .... . . .... . ....... .. .. ...... 3rd DEFENDANT Coram: WYSON CHAMDIMBA NKHATA (ASSISTANT REGISTRAR) Mwangomba - of Counsel for the claimants Mwakhwawa - of Counsel for the defendant Chitsulo- Court Clerk and Official Interpreter ORDER ON ASSESSMENT OF DAMAGES This is an order for assessment of damages to a motor vehicle pursuant to a judgment on consent by the parties entered on the 15th May 2018. The claim arises from an accident that occurred on the 17th of July 2015. By writ of summons dated yd September 2015, the claimants commenced this action against the defendants claiming damages for pain and suffering, loss of amenities of life, disfigurement, cost of repairing the vehicle and special damages. Marylene Makumi & Others v Abraham Katunga & Others Civil Cause No. 741 of2015 Page I -- - - - - - - The background of the matter indicates that on the 17th of July 2015, one Mr. Abraham Katunga negligently drove motor vehicle registration number CK45978 Toyota Land Cruiser Pickup that he hit motor vehicle registration number SA6574 Toyota EXIV saloon which was being driven by the 1st claimant and the 2nd claimant was a passenger. After hitting motor vehicle registration number SA6574 Toyota EXIV saloon, the vehicle left the road and hit the 4th claimant. As a result of the accident, the I st, 2nd and 4th claimants sustained various injuries and motor vehicle registration number SA6574 Toyota EXIV saloon which belonged to the yd claimant was damaged beyond repair. By consent of the parties as aforesaid, the parties herein agreed that the 3rd defendant do pay damages for the 3rd claimant' s damaged vehicle. The said vehicle had been estimated to have replacement value ofKl,951,000.00 and K2, 167,900.00. The payment was to be made within 14 days. It appears however the yd defendant has omitted to honour the terms of the Consent judgment. Hence the parties coming back to court. The issue of liability having been settled by the said consent judgment entered herein and part of the agreement having collapsed, this court heard the parties on the question of the determination of the quantum of damages to be awarded to the yd claimant on the replacement value of the damaged motor vehicle in question. The evidential summary was as follows: The 3rd claimant was the sole witness for his case and through his witness statement which he adopted in its entirety he averred that on or about the 17th of July 2015, the pt plaintiff was driving his motor vehicle motor vehicle registration number SA6574 along Chikwawa/Blantyre road. She then was involved in an accident which was caused by the negligent driving of the 1st defendant. As a result of the accident his motor vehicle was severely damaged. He exhibited pictures marked "P3" showing the motor vehicle after the accident. He further averred that as a result of the said accident he has been deprived the use of his motor vehicle. He further exhibited quotations for repairing the motor vehicle from different garages. It was his plea that the defendants should meet the costs for repairing his motor vehicle. The 3rd defendant did not parade any witness. The parties filed written submissions which I shall refer to as and when necessary. I have had ample time to look at and consider all the documents filed by the yd claimant in support of these proceedings. The documents are not contentious and the skeletal arguments are clear as to what the claimant is claiming for. The law of Torts provides that a person who suffers bodily injuries or losses due to the negligence of another is entitled to recover damages. The purpose of awarding damages is to compensate the injured Marylene Makumi & Others v Abraham Katunga & Others Civil Cause No. 741 of 2015 Page 2 - - - - - - party as nearly as possible as money can do. That is to say, to place the Plaintiff in a position he would be had he not suffered the damage (See Livingstone v Rawyards Coal Company (1880) 5 AC 25). This is what is termed the principle of restitutio intergrum. The present claim relates to a claim in respect of which damages are recoverable for cost of repairing the motor vehicle. The position oflaw is that where an item has been damaged and is in a reparable state, the court will award as damages the cost of repairing the same. On the other hand, where the item is beyond repair, the court will award as damages, the cost of replacing the item, see Hara vs Malawi Housing Corporation, 16(2) MLR 527 and Tea Brokers (Central Africa) Ltd vs Bhagat (1994) MLR, 339. In the present case, the evidence which is not in dispute shows that the motor vehicle was in a reparable state and the court is therefore obliged to award as damages, the cost ofreplacing it. It must be noted; however, that such damages fall within the category of special damages and as per the legal requirement, these should be pleaded and strictly proved. In the present case, the cost of repairing the said vehicle has been pleaded and there are some documents attached to the witness statements of both witnesses trying to prove the same. I have had an opportunity to go through these documents that have been exhibited herein. There are quotations indicating the items that needed repairing as well as cost of labour. The quotations show totals amounting to Kl,951,000.00 and K2, 167,900.00. Counsel for the 3rd claimant prays the court should consider the lower amount as costs of repairing the vehicle. I believe the prayer is reasonable. Nevertheless, what transpired during cross-examination of the 3rd claimant is that the motor vehicle was sold in the course of waiting for the 3rd defendant to pay the repair costs. Counsel for the 3rd defendant seems to have taken issue with this position. In his written submissions which I thought I should reproduce in part he avers as follows: 1. On his own admission of having sold the motor vehicle the Plaintiff cannot be awarded damages for cost of repair. There is nothing to repair. 2. The Plaintiff has left the Court to speculate as to when he sold the motor vehicle. In the absence of evidence as to when the motor vehicle was sold damages for loss of use cannot be lawfully awarded The period of loss of use is not before the Court. 3. Over all the 3rd plaintiff has failed to prove his entitlement to the damages claimed and his action ought to be dismissed with costs. Marylene Makumi & Others v Abraham Katunga & Others Civil Cause No. 741 of2015 Page 3 Essentially, Counsel for the Jrd defendant is arguing that the damages for repairing the vehicle are no longer obtainable considering that the subject matter is no longer there. I was of the opinion that if the vehicle was sold damaged as it was, it did not fetch the price it could have fetched if it was not damaged. I strongly believe that the costs prayed for are for damages that were caused and assessed on the vehicle as it were. Irrespective of the fact that the vehicle has now been sold, I hold the view that he ought to be compensated for the damage that was caused to his vehicle. The purpose is to be put back the claimant to a position that he would have been but for the accident. The claimant in this case also claims damages for loss of use of the damaged vehicle. In the consent judgment that they have now deprecated, they had agreed on K200,000.00 after deducting 20% contribution. A reading of the Marpessa [ 1907] A. C. 241 , Admiralty Commissioners v. S. S. Chekiang [1926] A. C. 637 and Admiralty Commissioners v. S. S. Susquehanna [1926] A. C. 655 shows that damages for loss of use where the vehicle damaged is not profit earning and there is no substitute vehicle hired or no stand-by vehicle kept available, is generally to be calculated on the basis of interest upon the capital value of the damaged vehicle at the time of the accident, this value being ascertained by taking the original cost and deducting depreciation. No evidence has been adduced in this court to enable me to assess the damages in that respect. As argued by Counsel for the defendant, now that the vehicle has been sold it would be speculative to endeavor to work out what would be the appropriate quantum for loss of use. So I award no such damages. In summary I award the 3rd claimant K 1,951,000.00 being the value of the damages that the 3rd claimant's vehicle incurred. I so order. MADE IN CHAMBERS T IS 30th OF JULY, 2018 TA Marylene Makumi & Others v Abraham Katunga & Others Civi I Cause No. 7 41 of 2015 Page4