Manuel v Prime Insurance Co. Ltd. (Personal Injury 551 of 2016) [2018] MWHC 689 (19 June 2018)

The Judiciary IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CASE NUMBER 551 OF 2016 Between JACQUAREEN MANUEL............................................................................ CLAIMANT -and- PRIME INSURANCE COMPANY LIMITED........................................... DEFENDANT CORAM: A. J. Banda, Assistant Registrar Mr. C. Kalua, for the Claimant Mr. Z. Chipembere, for the Defendant Ms. M. Galafa, Clerk/ Official Interpreter Banda, A. R 1. Background ASSESSMENT ORDER On 4th August, 2016, the claimant took summons against the defendant seeking damages for pain and suffering, disfigurement, and special damages, and costs of the action. This followed the incident whereby the driver of a Toyota Hiace minibus, a Mr. Michael Namangale had hit the claimant, a minor, who was standing on a dirty verge of the road the minibus was driving in. The defendant entered their defence but eventually they agreed with the claimant on the issue of liability. The honourable judge, Justice Jack N’riva then entered judgment on liability in favour of the claimant on 29th March, 2017. The honourable judge gave the parties fourteen days from that date, within which to agree on quantum of damages but apparently this did not materialise and the matter was set down for assessment hearing before the registrar, as per the order of the judge. Page 1 of 4 1 Jacquareen Manuel v. Prime Insurance, P.l. Cause No. 551 of 2016<Assessment Order> Banda, A. R. The claimant only called one witness, her mother. The defendant did not call any witnesses. Counsel had asked for 14 days in which to file written submissions for the assessment but did not file them in that time, or anytime thereafter at all. 2. Evidence Catherine Mailosi adopted the witness statement which was filed with the court. In the statement she told the court that she was the mother of Jacquareen Manuel who was aged 14 years old at the time that the daughter was involved in an accident at Bangwe Engena Filling station along the Robert Mugabe highway. She said she was at her workplace when a certain woman from within the area told her that her daughter was hit by a motor vehicle and that the daughter was rushed to Queen Elizabeth Central Hospital. Catherine Mailosi further told the court that her daughter sustained a fracture of the right leg, multiple cuts on the face, both hands and both legs. She said the right leg which had a fracture as revealed by the x-ray was swollen and it took one week for the medical personnel to put it in a plaster of Paris. She said the plaster of Paris was removed six weeks later. The mother of the claimant went on to state that the right leg was not completely healed as it swells from time to time and the child complains of pain when she has walked some distance. She also tendered a medical report that she had received from Queen Elizabeth Central Hospital regarding the injuries of Jacquareen Manuel. In cross examination, Catherine Mailosi told the court that she did not go back to the hospital when she noticed that the right leg of her daughter still swelling and that the daughter was still complaining of pain. She said that she had not been back to the hospital not because her daughter was healed but because at the time the hospital removed the plaster of Paris they informed her that the daughter’s broken bone was not completely healed and that it would take some time and she needed to buy some prescribed drugs to ease the pain in the process of healing, a thing which she was doing. 3. Issue The issue in this case is the quantum of damages that should be paid to the claimant by the defendant in the circumstances. 4. Analysis of Law and Fact Every victim of a tortious act is entitled to be compensated by the tortfeasor. The level of damages must be adequate enough to put the victim, as far as money can, in the same place that the victim would have been had the wrongful act not been done to him- Page 2 of 4 1 Jacquareen Manuel v. Prime Insurance, P.l. Cause No. 551 of 2016<Assessment Order> Banda, A. R. Namwiyo v. Semu and Others [1993] 16(1) MLR 369. It is impossible to come up with an amount of money that fully compensates a non-monetary loss, with mathematical precision, like is the case with personal injuries. As result, to achieve certainty and consistency of awards in like cases, courts use awards in comparable cases as a guide, without losing sight of specific losses suffered by a particular claimant. See Chipeta v. Dwangwa Sugar Corporation, Civil Cause No. 345 of 1998, High Court, Principal Registry (unreported). Courts also take into account the rise or fall of value of the currency over the period of time that has passed between a comparable case and an instant one- Paulo v. Mwakabanga [1991] 14 MLR 409. In the instant matter, the claimant had a fracture of the tibia. She also had several cuts on her face, both hands and both legs. She is looking for damages for pain and suffering caused from the injuries. 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. 19851 p8. The claimant also prays for damages for disfigurement. Disfigurement refers to changes in the physical bodily frame that has been caused by the injuries in an accident. In the case of Chingamba v. Deerless Logistics Limited Civil Cause No. 2888 of 2007, Potani, J 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 the case of Henry Manyowa v Timothy Phiri and Prime Insurance Company Limited, Personal Injury Cause No. 139 of 20 12 where the plaintiff suffered an open fracture of his tibia on the left leg, the court awarded him K2, 800,000.00. In the case of John Muheka v Francis Katsala and Real Insurance Company Limited, Civil Cause No. 1649 of 2010 where the plaintiff suffered fracture of the right tibia and fibula, multiple soft tissue and bruises the court awarded him K l, 524,500.00. Again in the case of Batumeyo Paulo v United General Insurance Company Limited, Civil Cause No. 2265 of 2010. K l, 600,000.00 was awarded to the plaintiff who suffered open fracture of tibia and fibula. In Malisewo v. Charter Insurance Company Ltd, Civil Cause No. 915 of 2012, the claimant was awarded Kl, 500,000.00 as damages for pain and suffering and K800,000.00 as damages for disfigurement. In that case the claimant suffered a wound on his head, fracture of the left tibia, soft tissue injuries, and bruises. Page 3 of 4 1 Jacquareen Manuel v. Prime Insurance, P.l. Cause No. 551 of 2016<Assessment Order> Banda, A. R. In an award made on 16th day o f June, 2017, a claimant who suffered fractures o f the tibia and fibula on both legs, multiple wounds on the right shoulder, face and both legs got compensated with K l, 500, 000.00 for pain and suffering, and K800,000.00 as damages for disfigurement- Mauzu v. Batson and Another, Personal Injury Cause No. 77 of 2014, High Court, Principal Registry. In the case of Mrs. Veronica Kayamba v. Prime Insurance Company Limited Civil Cause No. 2158A of 2008, a claimant who sustained a fracture of the left leg and a deep cut wound at the back was compensated with an award of K4, 000,000.00 for pain, suffering and loss of amenities of life. In the instant matter, having put into consideration all necessary factors alluded to above, I find compensation of K3, 800,000.00 as adequate compensation for pain and suffering and K l, 000,000.00 for disfigurement. The claimant also prayed for special damages. The claimant is awarded and K 3,000.00, and K10, 300.00 as recovery of cost of a police and a medical report respectively. 5. Conclusion In conclusion, the claimant is awarded a total of K4, 813, 300.00 as damages for pain and suffering, disfigurement and special damages. The defendant should also pay costs of the claimant’s assessment hearing. Made this 19th day of June, 2018, Austin Jesse Banda ASSISTANT REGISTRAR Page 4 of 4 1 Jacquareen Manuel v. Prime Insurance, P.l. Cause No. 551 of 2016<Assessment Order> Banda, A. R.