Sapanga v AG (Civil Cause 2299 of 1994) [1996] MWHCCiv 19 (17 May 1996)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 2299 OF 1994 BETWEEN: MARGARET SAPANGA . . . . . . . . . . . . . . . . . . . PLAINTIFF AND THE ATTORNEY GENERAL . . . . . . . . . . . . . . . DEFENDANT CORAM: W. W. Qoto, Deputy Registrar R. Mhone of Counsel for the plaintiff Mrs Chikaya Banda of Counsel for the defendant W. W. QO TO, DEPUTY REGISTRAR: for assessment of damages. The action is brought before me against By writ of summons issued on 12th Dece mber, 1994 the plaintiff claimed loss of dependency in respect of the death of her husband Sosten Sapanga (the deceased) loss of expectation of his life, loss of a motor vehicle and los s of use. The plaintiff further claimed costs of the ac tion. compensation defendant the for deceased who was The Immigration It Department, died in a road ace ident on 2nd December, 199 3. is not in dispute that the accident and c o nsequently his death was caused by the negligence of the defendant's agent who was in control of a motor vehicle registration ma rks MG 130H which belonged to Forestry Department. employ of the the in from the plaintiff and Mr. Selioni Petros I heard evidence It emerges from their Simfukwe of the Immigration Department. t hat the deceased, at the time of his evidence as undisputed death, was an the rank of Assistant Commissioner of Pol ice and he was based in Lilongwe. At the time of his death, he was aged 51 years. Th e plaintiff is aged 51 years and there are 9 children in the family. Immigration Officer at HIGH COl)RT :. •BRARY -2- The wife's evidence was that the children are Judi th who was born in 1968, Dave born in 1970, Leo born in 1972, Godwin born in 1974, Elizabeth born in 1976, Maria born 1978, Simplicia born in - 1980, Cornelio born in 1982 and Tamala born in 1995. All these children stay with her and she has no gainful employment. the time of his death, the deceased was driv ing his motor At vehicle which got damaged in the collision with MG 130H. She told the court that the deceased had told her that he had bought it at K45,000.00. He used to go with this motor vehicle to work but she and the children could use it at home as well. She did not know his salary but he us e d to give her Kl,100.00 per month for the upkeep of the family. Mr. Simfukwe testified that he is an Immigration Officer and he used to work with the deceased. At the time of the deceased's death he said the deceased' s gross salary was Kl8, 516. 00 per annum and his motor vehicle loan entitlement was Kl2, 000. 00. The net pay of the deceased was K873.68 because the deceased had a motor vehicle advance for which deductions were Malawi Housing Corporation rent, Police Savings Scheme, Police Welfare Fund, Tax and motor veh i cle insurance. f urther He the retirement age for Officers, like the deceased was 55 years. He could not tell if the deceased had any chances of promotion at his work or if he testified that in 1992, carried on any other business to supplement his income. his death, the plaintiff was paid the death gratuity. After He conceded in motor vehicle allowances. cross-examination that for using the deceased on official duties, his personal earn would take Judicial notice of circular Ref. No. PD/103/8 /ID/VIII/4 the Secretary For Personnel the deceased's the the retirement age was 50 years and those who wished to I from dated 20th . November, 1992 Management and Training that at death, extend that period had to seek authority of the Government. time of I said conceded by Mr Simfukwe for the defendan t As that for using his motor vehicle, the deceased could earn extra income to supplem e nt his the I plaintiff's evidence that he used to give her Kl, 100. 00 per month for the upkeep and maintenance of the family. am prepared to accept salary and I have read submissions of both counsel and I account in writing this order of assessment of damages. take them into the claim for damages for loss of I contrive to deal with expectatio n of life first. It is now settled that an award of damages under this head is conventional and small awards have been the order of the day since tdhe decision of the House of ·• -3- that ( 1941) A. C 157. loss of prospective happiness. Lords in BENHAM V GAMBLING In that case their Lordships substituted for a figure of El, 200 an award of £200 It was again decreed by the for loss of expectation of life. House of Lords in this case, that damages under this head are rather awarded for the the circumstances of life in court must be satisfied to a positive question were calculated to lead, on balance, measure of happiness which has been curtailed by the negligence the defendant. Admittedly the deceased had a very large of family which comprised 9 people. His wife was not an income earner. Pausing there one would say, and indeed counsel for the defendant submitted, that the deceased did not have prospective there is evidence, which is controverted happiness. and which I accept, that the deceased was a Senior Officer in the Immigration Department. While it would be fallacious to assume that all human life continuously enjoyable thing, it is the deceased did have prospective impossible happiness. losses which are compensated for by conventional awards, Lord Diplock in WRIGHT V BRITISH RLY BOARD (1983) A. C. 773 said, Speaking about the non-economic However, that Thus say to "Such loss is not susceptible of measurement in money. Any figure which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncracies of the assessor figure must be "basically a conventional figure derived from experience and from awards in comparable cases." the I have looked at awards made in this court in comparable cases. I have also gleaned from my experience knowledge about awards I have made It would be a work of peregrination if cited these comparable cases. Suffice to say that I award Kl0,000.00 f or loss of expectation of life. in cases of this kind. I now turn to consider the claim for loss of dependancy. The leading case on this type of claim is DAVIES V POWELL DUFFRYN ASS. COLLIERIES LTD (1942) A. C. 601. At p.617 Lord Wright said, "There is no question here of what may be called sentimental damage bereavement or pain and suffering. is a hard matter of pounds shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased It was earning, the ascertainment of which to some extent may depend on the regular ity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a cer t ain number of years' purchase." In BANDA AND CHIBUKU PRODUCTS LTD V CHUNGA 12 MLR 283, this approach was adopted by this High Court. The general principle the governing the deceased whose death is caused by defendant '' the dependants of tortious act of are entitled to such sum as will make good to loss of dependancy is that the •,1 '' -4- them the financial loss which they have s uffered and will suffer as a result of the death, 1 ', (per Lord Reid in TAYLOR V O'CONNOR ":;· (1971) A. C. 115 AT 127. . ·l is clear, there are the governing principle is extremely difficult because the assessment of While so many damages I must consider, in my impon derables upon which 'it is based. assess ment, the length · of time during which the deceased would have probably continued .t9 work and the amount he would have earned during I must also have regard to the : sta~e of health, his actual earnings deceased's ~ge immediately before his death and the prospects of any increases in his earnings due to promotion or other reasons. As I havee said, the conventional method of caJculating damages for loss of suppo rt is to .~,EE? ly __ to what .. is found upon the evidence to be the dependency (m~ITi~licand) a multiplier representing what I will consider in the circumstances particular to the deceased to be the appropriate number of years' purchase. that period. and the have the of e~idence of the deceased. the deceased, It is based on the plaintiff which evidence on this score. To find a multiplicand which is a figure representing the annual is value of support lost by the dependants of income of easy. In the present case the deceased' s annual salary was the net His net salary was however K873.68 per month. KJ.8,516.00. However, is I uncontroverted, that the deceased used to give her Kl, l O O. 0 0. There was evidence of Mr: Simfukwe that the deceased used to Thus earn allowances for using his motor vehicle on duty. although his net pay was I accept the plaintiff's I accordingly assume that Kl,100.00 per month is actively the income the deceased gave to the plaintiff for the support of his family. On this assumption the deceased would have made availabJ.e for s upport of his family Kl.3,200 per the annual value of This would be dependency. However, I must then take into account the rate of increases of wages paid to those in the same occupation as the the date of trial. deceased between According to the circular from the Secretary for Human Resources Management and Development Ref. No. PD/103/1/28/VI/7 2 and 15th December, 19 9 5, the starting · salary for an S 7 which rank the I deceased was at the date ' of hi s death is now K.32, 544. 00. accordingly assume that the deceased would have increased his support had he lived. the date of death and than Kl, 100. 00, annum. lower the time of his death the deceas ed was due for However at retirement. He was above the mandatory retirement age of 50 years. Since he was • aged ' 51 years at the time of his death, I am prepared to assume that his services had been extended and that his this was authorised and services had been extended and this was authorised and am I prepared to assume that he . would have reti red at the date of the trial. income would have been increased to K32, 544. 00 and I am prepared to assume that he would have been giying his wife Kl,600 per month for I have already heard that the deceased' s am prepared to assume I I, ----- - -- - -- ., .. ,. r1- 4• ,_'._.\•, ,' 'Ji: ,,. !',;,:::::: ·-;.1)•;,· ' \1 ~k~ .,';-,;:,~ f: ' : • '. -5- ,, . "I' . . .;. . f amiJ.y. i,; . J!rrom the date of his death t o the date is 1~.< ye~l s. The pre-trial loss is therefore '. . thai : the deceased would have retired at the date The,i-:e was:(i'.'po expectation of th e working life of I acc·ordin'gly make no assessment about post-trial -. : -:r_.:;·lt,r.t.;·~;·!,.-}.·,·:·;;,•, -,~ : :_,.~ i ;; . ,\,~~; .. ' ·'J/\" , :fc• support of his of K6,000.00. the trial I have assumed of the trial. the deceased. loss. turn to the clai~, for Joss of motor vehicle. This i s a claim I for special damages \ The.';l plaintiff 's evidence was tha t this was the value of the de6iased t ~ motor vehicle. The defend a nt on the other hand, loan I am prepared to accept t he wife's entitlement was KJ.2•;000.0O . evidence and I find it ai~a fact that the value of the destroyed motor vehicle is K45, ,000.~()0. thif( the deceased's motor veh i cle I award it to her. arg~~a . . ~~•t~ i There is again a claim foi loss of use. In the case s i ted to me on this claim, it is clear that this claim is compensated for by I award an award of conventional damages which are small. K5,000.00 for loss of use ·. · .. ,: lj} The K6, 000. a.,ir:,1oss of , depehdency following dependant~ Godwin, Elizabeth, ,Simplicia and Cornelio. other children according MALEKAN & PENOHT SONS TRANSPORT CIV. CAUSE NO. dependency in relation to children, ceases when attains the age o f 21 years. The la st c~ild, born in 1995, cannot be included. the the plaint i ff, Leo, I have ex c luded the to ESTER CHOTSAINE V STRANGER D. is apportioned 112 OF 1987 in equal shares, a mong In total action. I award the plaintiff K56, 000. 00 and cos t s of ,. the MADE IN CHAMBERS THIS 17TH MAY, 1996. ,r .,,, '· . ' ·J:_· 11t '. 1~/t . -• ';