Mbera v Chisale (Personal Injury Cause 1001 of 2020) [2022] MWHC 247 (1 August 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 1001 OF 2020 BETWEEN DANIEL MBERA (Suing as litigation guardian of JOSHUA MBERA (minor)...... cc. ccc cece eee eeeeeceeeesnesasesneeteneeeenensnseeees CLAIMANT AND BEELIX CHISALE. L 0... cccccccecececcssseeceeeeeeeeeeeeeneeneenansseesesenetenenatonaes 18? DEFENDANT PRIME INSURANCE COMPANY LIMITED.......... 0 cccceesescseeeeeeenee 28? DEFENDANT CORAM: Msokera, Assistant Registrar Kalanda, of counsel for the Claimant Ndlovu, of Counse! for the Defendants Mbekeyani, Clerk/Official Court Interpreter ORDER ON ASSESSMENT OF DAMAGES 1. This is an order on assessment of damages following a default judgment entered against the defendants on 7 December 2021. ‘The claimant, a minor suing through his father, commenced this action against the defendant claiming damages for pain and suffering, loss of amenities of life and costs of the action. He was hit by a motor vehicle (registration number TO 9456) at Page Lof3 Southend pedestrian crossing and according to the statement of case, he sustained a fracture on his left leg (ankle) and painful ribs on his Ieft side. The issue of liability was settled at mediation stage in favour of the claimant. The matter was referred to this court for assessment of damages. ‘The claimant’s father was the sole witness for the claimant’s case. He adopted his witness statement and tendered pictures of the claimant after the accident. In his witness statement, he averred that due to the accident, his son sustained a fracture of the left leg and painful ribs on the left side, and that he was hospitalised at Queen Llizabeth Central Hospital for 5 days. He further stated that his son’s leg was cast in Plaster of Paris and that up to date he experiences pain on the left ribs. He exhibited pictures of the claimant after the accident marked “C3” and medical notes as exbibit “C2”. In cross examination, the claimant confirmed that he did not bring any x-ray pictures to be adduced as evidence that the minor sustained fractures. To that end, the defendants have argued that the claimant has failed to prove that the minor sustained the fracture. In terms of submissions, the claimant through counsei is of the view that the sum of K8 000 000.00 would adequately compensate him. Without having recourse to the medical report of which contents are caught up by the rule against hearsay evidence, I am satisfied that the viva-voce testimony including the witness statement sufficiently proves that the minor sustained at least an injury as scrious as akin to a fracture. However, there is no proof on loss of amenities of life. I am alive to the basic principle of fairness that comparable injuries should be compensated with comparable awards - Malamulo Hospital (The Registered Trustees) v Mangani [1996] MLR 486 (SCA). The comparability of cascs must be both in time and injuries involved. I have taken note of the decided cases which counsel has referred to me. Going through the decisions of my brothers and sisters, I find the award in Olando v Lifa and another Personal Injury Cause No. 842/2020 [2021] MWHC 184 a good guide. ‘The claimant in that case, who was also a minor, sustained a fracture of the left ankle and bruises on the right and at the back. The court Page 2 of 3 19. made an aggregate award of K7 500 000.00 (inclusive of damages on loss of amenities of life) in December 2021. On the foregoing, bearing in mind the injuries herein, I award the claimant the sum of 7 000 000.00 (Seven Million Kwacha Only) as aggregate compensation, thus, covering all the heads of damages. The defendants will bear the costs of this proceeding which shall be assessed if not agreed by the parties. Made this 1° day of August 2022 at Blantyre. C. H. Msokera ASSISTANT REGISTRAR Page 3 of 3