Masoakhumbira and 2 Others v Kachepatsonga and 2 Others (Civil Cause 138 of 2021) [2022] MWHCCiv 31 (18 May 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI SITTING AT LILONGWE CIVIL DIVISION CIVIL CAUSE NUMBER 138 OF 2091 BETWEEN: TSERIZANT MASOAKHUMBIRA...vcccccsssssssssssssscssssessssses sdosssaunondascessssavssesuvensecsenes 1° CLAIMANT MATEYO MASOAKHUMBIRA...ssssssssssssssssiasisstssstnssiuuseesseccs., leseeesasenes 2° CLAIMANT HOWARD LING SON Dostossatsssneneeseoeeccc.c., sessenessseessssseseannen sovsssanensannnnnccnnen 3" CLAIMANT AND | MRS V KACHEPATSONGA seeesseesecaesnnsanes svessaecessueseseessososssesseeacsstasesseossrssuseens 1" DEFENDANT MR. KACHEPATSONGA. essssseustsstussutustististianintiennesinetiuseeseccecc, 2.° DEFENDANT PRIME INSURANCE COMPANY LIMITED. usmmsnssuseeeseececc.. 3" DEFENDANT CORAM: CHILUNGA CHIRWA (ASSISTANT REGISTRAR) Mtambo,, for the Claimant Chapo, for the Defendant Kumwenda, Court Clerk ORDER ON ASSESSMENT OF DAMAGES Background 1, ‘This is this Court’s order on assessment following a Default Judgment entered by the Honourable Court finding the Defendants liable for personal injuries suffered by the Claumants. Phe assessment is in respect of damages for pain and suffering, damages for loss of amenities of life, damages for disfigurement, special damages, and replacement of motor cycle, Evidence. the f Chumant 2, ‘This witness, did not give any evidence. What he purportedly adopted as his witness statement, Carns out, in my view, to be none of his, It bears features unique to the 2" Claimant and 1s word for word what the 2" Claimant also gave. It even bears attachments belonging to the 2" Claimant. There is simply nothing on record to fit the description of a witness statement proper to the 1“ Claimant. Indeed, it would seem to me this is a typical case of ‘copy and paste’ gone sour, It appears this was all done in confused haste. It fell upon Counsel to make sure that what she was attaching and filing with respect to each claimant was the right material. She did not give it sufficient thought and care. Perhaps counsel had the hope that the court would somehow correct her mistake, but this is litigation. Great care ought always to be exercised by Counsel at all material times in the execution of their duties on behalf of their clients. Such care was conspicuously absent in this case. As far as this instant exercise is concerned, therefore, there is no any evidence to support the I* Claimant’s claim for damages, the 2" Claimant He adopted his witness statement with its attachments, According to the statement, the 1" Defendant was at all material times the driver of a motor vehicle registration number KAO752, a Suzuki Swift Saloon. The 3" Defendant was at all material times the insurer of the said motor vehicle. The 2nd Claimant and the other Claimants were on the material day traveiling on a motor cycle from the direction of Lilongwe heading to Mponela when the 1" Detendant negligently caused or permitted the motor vehicle registration number KA 6759 to go al excessive speed when she knew or ought to have known that she was approaching a busy trading centre along the Lilongwe-Kasungu road. He exhibited a copy of the police repert on the accident which is marked as MMI. He went on to state that as a result of the unpact he sustained an open malleolus fracture and a closed humerus fracture. He exhibited MM1 and MM2, namely the police report and medical report respectively detailing the circumstances surrounding the accident and the injuric sustained. The 3” Claimant 6. This witness also adopted his witness statement, His evidence on the circumstances of the accident is the same recount of events as made by the 2" Claimant in his statement, Needless for me to reproduce it, He however, states that as a result of the impact he sustained fractures on the night feniur, bruises in the head and soft tissue injury on the right knee. He exhibited HLI1 and HL 2, namely the police report and the medical report respectively detailing the circuinstances surrounding the accident and his injuries. Issue for Determination 7. ‘The main question for the court to determine is what quantum of damages to be awarded to the 2" and 8" Claimants. ‘The Applicable Law 8. Generally, any person who suffers injury as a result of another’s negligence is entitled to be compensated by the negligent party for the injury suffered, Such damages are awarded to compensate the Plaintiff in so far as money can do. (see Nakununkhe v Paulo Chakhumbira and Altorney General, Civil Cause Number 357 of 1997). In Namwiyo v Semu et al [1993] 16(1) MLR, it was held that in awarding compensation, the court attempts to put the Plaintiff in the position he would have been but for the injury arising from the tort. Such damages however cannot be quantified by any mathematical calculation and as such the court relies on decided cases of a comparable nature for guidance. Sight must not be lost however, of peculiar facts of each case in order to avoid occasioning injustice by inflexible maintenance of consistency and uniformity (see D Kwataine Malombe and another v G. H. Chikho, t/a Bec Line Minibus, Civil Cause No. 8687 of 2001) 10. Ll, 12, Pain and Suffering Pain is ‘that which is felt immediately upon the nerves and brain, albeit directly related {o the accident, or resulting from medical tealment reasonably necessitated by the accident’ while sullering includes ‘fright, fear of future disability, humiliation, embarrassment and sickness’, See Ian § Goldren, Margret R. De Haas and Kenneth H. P. Wilkinson, Personal Injury Litigation, Practice and Procedures and also case of City of Blantyre v Sagawa [1993] 16(1) MLR 67 SCA. Factors to be considered in assessing damages under this head include the extent of the injuries suffered (Tsegula v Msaka and another, Civil Cause No. 565 of 2009) period of hospitalization, prospects of pain and suffering continuing (lames v Pew Ltd [1993]16(1) MLR 128) Loss of Amenities of Life Loss of amenities of life simply means loss of pleasure of life resulting from one’s life. In the case of Rose v Ford [19387]AC 896 the court stated as follows: a. “Lregard tmpaired health and vitality, not merely as a cause of pain and suffering, but aloss of a good thing in itself” co ! Disheurement Damages for disfigurement are awarded for some form of permanent scars or deformity left on the body of the victim, and may include the shortening of the limb. See Tabord v David Whitehad & Sons (Malawi) Lid [1995] 1 MLR 297. Comparators 13. In the case of Reuben Haswell Chanza v Jones Somanje and Prime Insurance Company Lunited, Civil Cause Number 122 of 2017, the Claimant sustained an open fracture on the night leg, deep cut wound on the right hand thigh, degloving wound on the felt leg, chest pains and bilateral knee injury, He was awarded a global sum of MK5,000,000.00 as damages for pain and sulfering, loss of amenities of life and disfigurement. 4, In the case of Aaron Fredrick v Crown Agro Industries and Polypack Limited, Personal Injury Cause No. 1007 of 9015 an award of MK4,500,000 was awarded to the Claimants who sustained a fracture of the right distal ibia and fibula, muluple bruises on hands and shoulders and had visible scars. “ 15. And in Rex Walala v Davison Chikuta and Prime Insurance Company Limited, Civil Cause No. 461 of 2011, the Claimant sustained a fracture of the left tibia, bruises on the teft arm and cuts on his face. He was awarded a sum of MIK6,500,000.00 as damages for personal injuries, Determination of the instant matter 16. Having considered the instant matter in. light of the above law and by the side of the comparators, I am of the view that the facts are not so far removed from those in the comparators, at least as far as the sustained injuries are concerned, The 2" and 8" Claimant who were able to successfully give their evidence in court, both satisfy the court through their 17. 18, witness statements and the medical reports attached that they sustained fractures of varying degrees but of, more or less, equal impact to those sustained in the comparalive cases, For the above reasons I award the om Claimant and the 3" Claimant a global sum of MK5,020,000.00 each as damages for. pain and suffering, loss of amenities of fife and disfigurement. I also award them MK200,000.00 as costs of the action. I will not make any award with respect to the damaged motorcycle as there was no evidence advanced to prove the amount involved. Any party agerieved as the right to appeal against this Court’s decision. th Made in Chambers tis, Stay oa MN eve 2022 Patrick Chilunga Chirwa ASSISTANT REGISTRAR