Mauka v General Alliance Insurance Company Limited and Shaaafsma (Personal Injury Cause 782 of 2018) [2021] MWHCCiv 6 (20 July 2021)

IN THE HIGH COURT OF MALAWI CIVIL DIVISION PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 782 OF 2018 JOYCE AGNES MAUKA Between - and - GENERAL ALLIANCE INSURANCE COMPANY LIMITED PASTOR LIEUWE SHAAAFSMA CLAIMANT 18° DEFENDANT 2ND DEFENDANT CORAM: Austin Jesse Banda, Assistant Registrar Phiri, on brief for Kamunga, for the Claimant Kadyampakeni, for the Defendants Galafa, Clerk/ Official Interpreter JUDGMENT ON ASSESSMENT OF DAMAGES Backgreund On 8 th May, 2019, Honourable Justice N'riva entered judgment on liability against defendants. On the May 2019 the Judge forwarded the case to the Registrar for assessment of I heard the parties for assessment of damages, and was called upon to make a damages, determination as to the amount of damages that the claimant should be compensated with. This is the judgment on the quantum of damages. Evidence The court heard from the claimant, I Joyce Agnes Malika that she was injured in a road accident attributed to the wrong of the defendants in their respective capacities. She said she had a heavy knock on the ribs, chest and left shoulder. She said that she sustained a fracture of the 6" rib left shoulder. [t was her evidence on the right side, painful right ribs and chest, and a painful that she was still experiencing pain on the right and left ribs, chest, and left shoulder even after lof4jPage treatment, She said that she was unable to do household chores due to the pain on her right ribs. She said in oral testimony on record that her broken parts of the rib cannot meet to heal properly and as such the doctor informed her that she would have the pain. She said that she uses pain killers in order to sleep properly. She therefore prayed for compensation for the pain and loss of amenities of life, damages for deformity and/or disfigurement and special suffering, damages for the medical report. She tendered a medical report and a police report. In cross examination she said that it was Dr. Kampondeni who authored the medical report that she tendered and said that the doctor was at the time of giving the testimony alive and operating his practice at Mpingwe, within Blantyre. She said that she had Photostat copies of the x-ray that she had but were not at the court. She also said that she did not have medical evidence that she was still experiencing pain. In re-examination she restated that her rib was broken from either a belt or an air bag that went off in the accident. The Law and Fact The starting point is that assessment of damages presupposes that damages have been proved and the business that remains is the measure of the amount of the damages- see the case of t/a Mzumbamzumba Enterprises vy. Amosi Transport Co Ltd [19921 15 MLR Ngosi 370(HC). The rule is that the injured party has provided proof of the damage sustained prior to the assessment hearing- Yanu Yanu Co v. Ltd v. Mbewe 11 MLR 405 (SCA). Damages in a case like this one, are not awarded to punish the defendant or tortfeasor, but to fully compensate the claimant of all the losses that he has suffered as a direct or consequential result of the defendant's wrongful act or omission. In the case of George Kankhuni v. Shire Buslines Ltd, Civil Case Number 1905 of 2002, Katsala, J stated as follows: "The law demands that the plaintiff, as far as money can do it, be put in the same position as if he has not suffered the loss. This is what is referred to as restitution in intergrum, It is not easy to quantify damages for losses that are not monetary in nature such as personal injuries. Courts as such use comparable cases as a guide to the quantification of applicable damages, without losing sight of particularities in the individual case that the court is dealing with. See Chipeta v. Dwangwa Sugar Corporation, Civil Cause No. 345 of 1998, High Court, Principal Registry (unreported). The court will also consider factors such as passage of time since a particular comparable award was made, as well as currency fluctuations within the period between the case at hand and the comparable one- Hon. Kennedy Kuntenga v. Attorney General, Civil Cause No. 2002 of 2002, High Court, Principal Registry, (unreported). Pain and Suffering 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 2of4|P age suffering includes fright, fear of future disability, humiliation, embarrassment and sickness- lan Goldrein et al, Personal Injury Litigation, Practice and Precedents (Butterworths, 1985) p8. The award of damages for pain and suffering depends upon the claimant's personal awareness of pain, and his capacity for suffering- see Limpoh Choo v. Camden and Islington Area Health Authority [1980] AC 174 @ 183. Loss of Amenities of Life Damages are paid under the head of loss of amenities of life to compensate the claimant's deprivation of the pleasures of life, which amounts to substantial loss, whether the claimant is aware or not of that loss. See City of Blantyre v. Sagawa [1993] 16(1) MLR 67 (SCA); Kemp and Kemp, The Quantum of Damages, Vol. 1 (2" Edition), 1961, p. 624. Disfigurement is concerned with change of looks of the individual. This may be scars, Disfigurement amputations and postures. See Lemon Banda and 19 others Motal Engil Limited and injury cause number 178 of 2012 General Alliance Insurance Limited, personal (unreported. Damages for disfigurement are awarded separately if the Claimant has been ridiculed, lost his social status, or that he is in in need of plastic surgery. See Mary Kamwendo v Stage Coach Malawi Limited Civil Cause Number 840 of 1995, Injuries in this Case The claimant states that she was injured and had a fracture of the rib. The defendants submit that that is not the case as she did not prove the injuries. The defence said that reliance was placed on a medical report that the claimant tendered subject to the rule against hearsay. There is no number of witnesses prescribed to state a point for it to be proved. There is no law also requiring proof of oral evidence by documents, The person who asserts must prove, and in this case on balance of probabilities. I believe the oral evidence of the claimant that she had a fracture of the rib and that she was informed of the same by a doctor. Whilst the contents of the medical report cannot be used to prove the point because the doctor did not testify of it, the fact that the report was made buttresses the point that the claimant was informed by the doctor. There is no reason why I should not believe her evidence. With the foregoing, I find that the injuries that the claimant sustained are; a fracture of the rib, painful right ribs and chest, and a painful left shoulder. Comparable Cases In Evelyn Jamu v. Prime Insurance Company Limited, Personal Injury Cause No. 612 of 2011, the claimant was awarded K4, 555,000.00 for pain and suffering, and K1, 445,000.00 for loss of amenities of life. She sustained a deep cut wound on the left leg, a fracture of four ribs injury to the right hand shoulder, swollen head, soft tissue on the right hand side of the chest, injuries and loosened teeth. 3of4 Page In John Madeya v. Maphumuzana Jere and Prime Insurance Co, Ltd, Personal Injury Cause No. 476 of 2012, the claimant was awarded the sum of K3, 500, 000.00 for pain and suffering and disfigurement, K1, 500,000.00 for loss of amenities of life on 12" June 201 8 for injuries as follows open fracture of the femur, rib fractures, backache and soft tissue injuries. fn Francis Chikoti vy. UGI Limited Personal Injury Cause No. 736 of 2016, a Claimant who sustained head injuries, multiple cuts on the face, swollen face, he lost four teeth of the upper gum, had bruises on the right hand, a painful right leg that had bruises, and dislocation of the ribs was awarded the sum of K3, 553, 000.00 as damages for personal injuries. Determination The two cited comparable cases al) had more serious injuries than it is in this case. The awards | must factor in the loss of value of the currency. On the were made about three years ago. I award her 1 award the claimant the sum of K3, 000,000.00 for pain and suffering. balance, K1, 300,000.00 for loss of amenities of life and K400, 000.00 for deformity. The claimant did not testify on any special damages. | do not make any award under that head as special damages must be strictly proved. Conclusion In conclusion, the Claimant is awarded a total sum of K4, 700,000.00. The Claimant is also awarded cost of the assessment of damages. Made this 20" day of July, 2021. Pays Austin Jesse Banda ASSISTANT REGISTRAR 4 of 4]Page