Mandiwa and Others v Star International Haulage Limited and Another (Civil Cause 40 of 1987) [1992] MWHC 23 (11 November 1992)

HIGH couRT LIBRARY BE. TWEEN: IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 40/87 P 1i1ANOIWA AND OTHERS • • • • • • • • • • • • • • • . • PLAIN'l1IFFS and STAR INTERI\A'rIOi\iAL HAULA. GE LIMITED AND ANOTHER • • • • • • • • • • • • • • • • • • DEFEi'J°DAN'£ Of MAJ. AW,-~~ Coram "· . ' D F MWAUNGULU 9 REGIS'rRAR Kaliwo9 Counsel for the Plainti Chisanga9 Counsel for the Defe, tC \qq1. . ORDER This action in negligence was taken before the Honourable Mr. Ju.stice Unyolo. He delivered judgment on 28th February '1991. He found for the _plaintiffs s left damages to be asses.se-d by the Registrar. 'I'he first plainti.fi' 9 an in:fant was injured when he collided with a vehicle of the 1st defendant 1 driven in tr1e course of duty by the second defendant. 'l'he second and third plaintiffs are the father and motner of the first plaintit~f. The first plaintiff' claims general damages and special damages following the personal injuries sustained. The second and third plaintiffs are claiming damages generally t~or shock following the first plaintiff Is injuries. 'l'hey are also claiming financial loss for transport 9 medical and lodging expenses for themselves when nursing the first plaintiff in the Re1)ublic of South Africa. 'l'he Judge found the t'irst and second defendants liable generally on the ac•,tion. he didn't make specific f lndings on the actual claims particularly in relation to shock for the second and third plaintiffs. That evidence had to be taken in the course of hearing of the evidence for assessment of drunages. The injuries the first plaintiff sustained are contained in the medical report~ agreed to be part of the evidence from both counse 1 ~ by Dr. Mtafu 9 a Surgeon and Senior i-./eurosurgical specialist at Queen Zlizabettl Central Hospital. His Report includes an evaluation of scattered ryports fro.a clinical staff at Baragwanati1 Hospital in South . Kfr-ica where the first plaintif'f was admitted f'o:t· a period lasting ten months. The first plaintiff had bruises on his face, a dislocated fracture of ti-1e right clavicle. 'I'he dia.gnosis also showed severe brain injury. The child 2/ 0 ' • ' • -2 -developed a serious nepatoinegaly (enlargement of the liver) and jaundice. He consequently complained of serious abdominal pain and the circumference of the abdomen increased considerably. He also had other injuries caused by treatment: a small temporal ~1urr-hole in the skull to enable drainage in the pupil of his right eye which was dialeted.. A raparatorny (opening of the abdomen) was performed. It disclosed bile cyst. This had to be drained. Further investigations showed that the liver trau1na was more extensive than previously assumed. 'l'his necessitated a partial removal of the liver r,iass. A permanent drainage system was therefore inserted through the section on the side of the portion in ti:1e liver to enable drainage of the bile through a c1.rainage bank. The plaintiff Is pains still persisted: a form of general abdominal pain, concomi ttant lack of appettite and vomitting and a geneal feeling of sickness. There were therefore several surgical and medical treatments in the course of cne ten months in which the injury was treated. '!'here is · prognosis of the injuries. While there was significant progress on the physical injuries, the report reveals few complications shortly after the treatment in South Africa. It was obvious that the injury had had an effect on his mental f'acul ties. On page 6, the Senior Neurologist says "Al thougn the boy has done well after the neurosurgical procedure~ the amnesia for new input rnust be taken as a Dad sign for his future scnolarstic development -as well kno11m9 school performance depenas largely also on good memory. So far the boy Is ability at this does appear good, thougn partly due to lack of continuous school attendance. this must oe taken as another rnajor facto:;:-· :for very poor school results: he failed completely at the end of second term in the 1985/86 acader:1ic year· in standard two. How t·ar and how much the trauma and ~ost trauniatic speti-caernia .... have contributed to this must await future exanlinations and quantification.s91• It is also platitudinous from the Neurologist Is report that there would be future pain and general effect on the plaintiff's well being: lithe persistent, intrahepatic cavitations ( now one large one of so;;ie 3. 0 cm diameter and two similar ones still remain) ai-·e to be understood as signs o1' bile accumulation and staticis with the danger o:f . . . . . . . . . local and systematic ( to the whole body). This has been shown several times already with fever, abdominal pain, abdominal distention9 etc. whereby surgical procedures and antibiotic therapy has been indicated. '1'11is is a serious hazard which af'ter all practical and clinical -surgical purposds must oe taxen as being permanent ..... for even if it Here to happen that the cavities close spontantenously (what is being hoped) the possibility is still given that bacteria and other rnicJ:-o organisms got trapped within the for111e:c cavity space to force a new anti ..... 11as is the case in osteomyetis and 3/ 0 • 0 •• =---'J /,I .. ✓ ,,,, .. • • g. -3 -... chronic 1 i ver disease) '£~1e la;.:>orator-y ts given above show that liver function has abnoraal p .... , despite the fact tnat the plaintiff' f'eels relutively \\Tell at the present\/. 'l'i1e impact of the injury therefore is retarded academic and prolonging aeterioration of the plaintiff's life." The second. anci t~1ird plairn;iffs are also claJ_i"r!lng du.mages generally 9 for shock, worry, mental an~uisi1 and. stress, loss of weight and pain anu suffering. The evidence given to me on their claim is nebulous. The plaintiff1s mother gave no evidence on this issue in hearing evidence in chief. In cross examination sn0 referred to loss of weight, 'i'he father did not even refer to t/1e issue in his evidence in chief or in cross examination. 'l'he claims :for general damages fo1~ the second and thi:cd plaintiffs should not be allowed because tney have not been proved. Litigants should vear in mind that it is not sufficient to lay causes of action before a court, adduce no evidence in support and expect the court to m,,,-ard damages. Ti1ere must be laid before the court proof' of· the c.larnages claimed. In this pa.rtJ.cular case, the second and t:nird plaintif'f saw the f'irst plaintiff in tn.e injured state shoPtly after ·t:1e acciuen·c. 'I'neiI' case is probaoly E1ore like the plaintiff in Mcloug.nlin vs. O•Drian EHJ2 2 All E,iL Nr. Chisanga for the defendant suorni tted that there was no evidence to prove shock or any of tne coned tions r·aised in tne pleadings as naving followed from the inju:cies su:ffered by the fi1~st plaintiff', He fu:ctner sub:,1i tte0. that the second anci third plaintif':fs would not recover c:ru11ages for shock because tney were far away fr,or,1 the accideti t. Reliance was had on the case of Boldman vs. ~ander-son 1964 1 W. L,1-L 1317. Ivir·. Kaliwo did not r,1ake any su!)inission on t!ie evidence in proof of the claim for shock~ he further contended that the case relied on jy Mr. Chisanga nad been overruled by the House of Lords in Mcloughlin vs. O'B~ian. On the evidence bef'o1~e me I agree witi:1 r-,r. Chisanga. -'1.'l1e evidence is too scanty and c.nPelia0le as to f'ind that tne:ce was shock or any of the condi "cions blamed on the accident, In Mcloughlin vs. 01Bria1~, the shocl< or the conaiti.on in whicn the plaintit~t' was a:fter the accident vms assur ied and the court was invited to assume that that was the case. It is oovious 9 however, from the juu.grnent of Lo:r·d Wilber:force that it' the court was not suppo1::1ed to assume the situ.at ion 9 the issue should have oeen investigated. at t11e trial. In otner wor·ds evide,1ce should have been laid to show that the cond.i tion in w~1ich the plaintiff was after seeing the injuries and tne deuth or' her· c11ild was cont:r·iiJuted to by snock as a result of the accident. On the evidence oefore me I am wa-;.:'y ti1Ed:; the.ce was shoci< 01· anyt11ine beyond grief and sorrow as a result of the accident. I do not think that Boldi:1an vs. Sanderson was actually ove:;. TuleG. by the House of Lords. Ncloughlin vs. 0 'Brian. Lord Wilberforce 9 who ge.ve the basis for the decision of tne Hous8 of Lords, conside~ed Boldman vs. Sanderson as part of tne a.evelopinent or· the law 4 / ••• ' • I ., . .... 4 --on this area. It .raay oe very important to consic.e.c some of ti.1e points in i1is jud~ment for-one to p:r·operly De info:.:-c,ed of the develo:)iilen-c of the law in this area. L0::00. Wi lJerf'orce 9 howeve1."' 9 uid conf'irr.1 scene oi~ the accident was one of' the tuac proximi~y to tne ~ests. On t~e evidence as is before me9 ~oth mother and father would have recovered on cne oasis of Lor-d v✓ilber-f'orce is decision in y,clou~l:._~~ vs. 0; Brian. 'I'.he botto,,1line of t.i:1c c&se nowever is tha-.:; tl1ere is no evidence to prove that the two plainti:ffs su~:fl3red shock or any of the conditions :caised in the statement of claim. I wi 11 not av,a.t·c.i ;;eneral damages to t:1e se~ond .::.:nG -chi rd Dlaintif':fs" It :::·ern0.ins 9 the:ce:t'ore 9 ·co assess general car,w.gcs for ·cue 1'irst pL:l.intiff. 1'he :·Jiccaninny v12nt thr-ough consicler2.lJle pa.in anCl suf'fering. The t8n 1,,ont'rn must J.1d. V~ ueen a strenuous ordeal. The pain was frora the original injuries e;nana·cing from tl1e acch'i.,.:mt ,,u1c.i consequent suI'E.,ical operations to the head an.d the abdomen, SimiJ.nr ope:cationfJ occured \JheneveI' there \vas a cilect:u). Tl":te plD..lnti:ff complained of :>ersistent audorninal pains, 'fl'le future, as seen from the present, iG that the:r·e will be co,Ytinuo..-cion o:f pain anti suff'e:cing. 'fhe si tuatio:1 in ,,,J1ich the plaintif':f is a-t ti'1e ;noment has been compared. to osteomye-cis, '1'llis means ti:12.t it is likely to recur in -cne f'utu:.."e. rill01..,,:;; is no indication as to t;·1e c:ffect of the injur-y to t,10 clavicle on dexterity. It is di:f:ticu.lt to f'ii3u:ce out tne e:t'fect of the L-'1jury on tne en,joy1aent of i.:he noru1s,l pur.,3ui ts 01· lGisu. Pe a.nc't work. It can be saici howev~r. that t1-ie jX;r>sistent aodornino.l pains 1i1ay very--;,;~11 have ·cne ei'fect, aloeit miniilial1 on enjoyment of leisurely pursuits. Although 9uin and sufferin~ a.n<.1 loss o:r amenities are dit':ficul ·c to ansess in ,r:onetar-y tenns, the cou:;."'ts endeavour to adeqt..s.tely cor.1pensa ce the victi,n for the ~ain and sut':ferin[~ causet by the L1.jury. 'I'he coui~ts look at t~1e particular evic.ence of things liKe ins capacity for paj_n ~tc. and tile ccctivi ti3s in wt1ich he was involved i'or spoi-·t 2.musemen·c a.nd lei su . ..--·e. Justice9 however, is supposed to be even handea. Those wno ~1ave i:1ad aLio~t the sawe lcnc of suffeY.'in.g Si10ulc~ 1·ecei ve unif'o:r·rn conperisation. Cour-cs, therefore; check 1·0:~ a.wa1 .... ds in siLlilar jurisdictior1 or disparate jurisdiction with sirrlilar social and economic conc.i.itions, blr-. Chisan[;;:, r1as subr;u ttcd -chat KlO 9 000. 00 would De t:.·1e :cig11t mJE-..rd f'o:..~ this case, He relied on the case of Cnari1ani vs. Ca:cgo Cc,rrie1'S ?1~1 V<..-\. te Lir:1J. tect.. I J.1avc ~1.c:1.d to rnatcc av.re:.rC~s in tr1e se cases nm1 f'or quite so1ae time. 'l"he case in this action in ;0iany ways is uni4ue and pro0a,Jly of a 1:1022 serious i11rplicatio;1. 'rhe plain.ti f:f was in /10::;pi -cnl fo1'· cen 1riontns" :.-1c,,i sever·al su:cgical operation:::;, ·rhc::!rG is ~n·osp~ct of i'u cur·e ,,ain al ti10u~~h on.e can not ac·cually 3,~e how t11i.s at'f'ects nis pur·sui t o1~ leisure, I o.wa:cd K16 9 000 fo1~ ;_)V.in E,nd sufi'ering ana loss of a.meniti0G, 'rlie evidence doGs no e sl1ow tl1at there 11e.:3 t>ecn s:·1ortenL1g of the plaintiffls life as a result of the injuries. Thcl s / 0 ., 0 0 0 r r -5 -Report by the Senior Neurologist is very detailed. It does not indicate that there was shortening of life as a consequence of the injuries. 'I'he court cannot assume. In fact generally courts rely on medical expert opinion on this. I will make no award therefore for loss of expectation of life. The first plaintiff is however entitled to loss of earnings. The plaintiff was seven years of age at the time of the accident. He was in standard two. There is no evidence of his academic performance, The Senior ifourologist however·, intimates that the injuries will affect trie plaintiff educationally. There is, therefore, prosp0ct of loss of earnings. ~here is a substantial likelihood that this would be the case. In the absence of prGvious academic performance 9 it is difficult to decide what the future held for him. The parents however 9 in rny view sGemed to have modest education. It could be said that the plaintiff could achieve a Malawi School Certificate of Education. Ti-1is is now becoming more possible becm.1se of halawi Distant Education Centres and now the most af'fluent parents are willing to send their children to private institutions to achieve at least the mini111Um level of qualification to afford employment. Retardation of his mental capacity ri1eans that the plaintit'f has prospect of loosing that which he could have attained. It is v:cry difficult to award da1nages for this sort of loss. Courts just provide 9 to borrow a phrase9 11a guesstirnaten, John vs. Lawrcmce 1969 3 All E. R. 267; Ace vs. Distillers Company (Bio Chimicals 1970) 1 W. L. R. 114 Daish vs. Wauton 1972 2 Q. B. 262. Most Malawian youngmen enter employment at around the age of· twenty. Generally, they will retire at the age of fifty. I would, in this case think that tne plaintiff, because of impairment of his .:~ducational capability will not be able to be employed in the job that his capabilities would have enabled. him to. I would gu0sstimate this loss at K1~200 pGr annuin. In making the award for a child of tender age 9 two things must also be borne in mina" First, the plaintiff will actually star·t earning much later in life. In this case thirteen years later. Secondly the loss will commence then not now. The award has to be made now. The approach in my view is to work out the proper award for loss of earnings for the working life, in this case from the age of 20 to 55 years. This is done by working out what tho appropriate award would bo if he was at that age on ~he date of judgrnent. The awarc..9 being made earlier that i-c would be due, nas to be downgraded to an amount which on compound interest would give tho plaintif'f that w,1ount of E1oncy that would compensatG for loss of 2arnings in the wor·king years. At a guesstimate of Kl 7 200 per annum ti.10 appropriate award is K22,800.00 when the plaintiff is 20 years. The award which will give him that antount at the age of 20 years is Kl3,693. I award K13,693 for loss of 2arnings. 'l'here is also a clai111 t·or damages on disfigurement. The conspicuous disfigurement would be the burr-hole on the 6 / ••••• r faco. I must confess that I did not havG the opportunity to look at this disfigurement. In Nakane;a1s case, the Honourable the Chief Justice S1-:inner award dams.gcs for disfigurement. The disfigurement there was very pronounced and was across the face on a b;:_:;autiful sal2slacty. The Honourable: the Chief Justic2 fe:lt that that clisfigt.n'orncnt was obviously a disg:2ace to the lady :Jursuing that career and that generally women ar8 very concerned witn appearance. In Kafaliwoni vs. Mwal;.; Lilongwe Civ. Cc:~use £-io. 28/89, I r2fused to award damag·;;;s for-disfigur·2rncnt. In this case I would award Kl00.00. Th0 sGcond and third plaintiffs are entitled to air fares, airport tax, transport axpcnscs, telephone expenses und loss of salary arising fro~ treatment of thGir chila the9 first plaintiff. The second and third plaintiffs adduced evidence of' expenses for accommodation and i~ood. 'I'}1erc is no claim for accommodation in the statement of clairn. There i's a claim fo:r meals in Souti1 Africa. Meals are an ordinary expense. The second and third plaintiffs would have incurred expenses for meals anyway here or in South Africa. The second and third plaintiff should9 they have not 1 sho"'1 unusual cxpendi ture f'or meals. The second plaintiff is awarded K4,079.19 and R385.40 special damages. The third plaintiff is awarded Kl,461.70 special dama~es. The claim for f'uture medical expenses is ticklish. 'l'he Neurologist says in his report: nFor further re--assessment and possible re-orientation of this schedule 9 a msdical i~eport should be requested at the end of October beginning of October 1988. It is to be understood tnat the schedule includes marred items such as costs of flights to and from R. S. A.~ medical and surgical fees, extra-tutorial fees to improve boy1s school performance, etc. IV r.rhe report would have assisted in deciding whether medical expenses would bG incurred continously in tne future. The report would also have shown the actual expenditure. This figure was to be the multiplicand. 'I'his report is not before me. It was the duty of the plaintiff to prove future medical expenses. He has not. I make no award for it. Made in Chambers, this 11th day of November l) F Mwaun0u'lu 0 REGISTRAR OF THE HIGH COURT