Mhone & 4 Ors. v Rooyen (Civil Cause 750 of 1994) [1995] MWHCCiv 21 (22 November 1995)

' / . \ \ '·: ·,.... '· 96. •:.,., '''-·~·., . IN THE IIIGH CDURr OF tlALAWI PRINCIPAL RffiISIRY IVJL CAUSE NUt1BER 750 OF 1994 MUSSA 11I-DNE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1ST PLAIN'JTI'F' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2ND PLAINTIFF LASIDN tlSUKU JOHN ~TIRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3RD PLAINTIFF TDVONE KANYASHA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4TH PLAill'l'll'f' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SIB PLAINTIF'F BITI 11DALA and DEREK V. AN ImYEN DEFENDANT mRAli: E. B. TWEA, PffiISTRAR liv1afuJ_irwa_. Counsel for the Plaintiff Def errlant/Counsel absent RULI}G This is a claim for special daJJBges ,. daJJBges for personal injuries arrl darr:ages for loss of dependancy. The action v1as brought by five plajntiffs against the defendant. On 12 liay 1994, the plaintiffs obtaine::1 juigment in default of defence. On 18 November 1994, the plaintiffs gave evidence on On 30 which the Court is to base . its assessment of darr:ages. November 1994 > judgment in def aw t ·which I have disallowe::l. the plaintiffs f ile:l an amerrled Order 20, ruie 11 is clffir. The Court res powers to amend j udgment or orders in cases of clerical mistakes or errors due to accidental slips . the s1Jbsequent amerrlm.ent sou3ht was to a llow the plaintiff to enter juigrnent for K30, ODD as special darr:ages in r-espect of the 1st pl aintiff. 1his was pleadrn in the ;;ta tement of claiID, however> after the general judgrnr~nt, for darr:ages to be assesse:l, the 1st plairrtif f gave e·vidence in which t he v-alue of the bmt ,vas mt rrn~ntione::l ani on the evidence on r ecord, the specj_al da.mar3e ·was not prove::1. rib allow an amendment t o this effect at this stage T,.muld be correctiJB the evidential I I iy I I I.. In <. J/9 G1y -... Co .... , V/:s, . .,,..., f ,- / -<l;;,,. I 21 ' ' . ' -· 2 ·- In m.y view, the jnterventi_on of the 1.st plaintiff defect. evidence rrakes it inequitable to allow the amendment . I t i s for t his reason that I disa.llow this amendment. On the evidence t herefore, the special daJJB.ges of KJ0,000 bave not been provErl.. The evidence here111 ·was that the 2nd am 3rd plajntif f s were employees of the 1st pla111tiff who ownErl. arrl operatB:J a f ishing brnt. The fourth arrl f i_f th plaintiffs were wives of the deceasErl. employees of the 3rd plaintiff ·who diB::J. in the brnt a ccident. It 1i'IBS in evidence tl::Bt on the fateful night the beat t hey were in vras m volved in an accident. 1"he 2nd plaintiff sustaina:l a broken shoulder blade and injured backbone. He T,va_s treate::1 at t-fonkey B3y Hospital. He tendered the medical report as PEY~ work . He told t his Court that up to now hf.3 i s 1.,1rable to do heavy IIBlllB\ r; 0- ... ~ 0 'J:> O · The evidence of the 3rd plaintiff 1vas i. J1jured in the pelvis and ~ ~: '\ head. - --► He had a bone protrudir:g f rorn the pelvi s ar:d since \ healing, he still limps am that he is 11mble to do IIBnnal work ·---- or fuddle a beat as his lBJ is now weaJc. \OJ · The 1st pla intiff told this Court tba t he 'i~Bs the employer of the other pla intiffs am their deceas ed husbands. He gave the ages Joseph tTh:amawire for whom the 4th plaintiff of the decease::1: s ues was 21 years and Ken/a James for i;vb.om the 5th plaintiff sues 'ivaS 25 years. Both were ITBrried and l::Bd children. I t T,-ras his evidence t hat he paid all his eJDPloyees K600. 00 a month . He did not tender any evider. JCe of paym.en t to his employees . The other two witnesses gave evidence in respect of the f amilies and ages of the d eceased. I note that there is no mention of broken I have e xamina:l PEX1. bone. The evidence of Fifi cannot be borne by PEX1. It should be notErl t hat the ltaiical Report note-l that he would not require I am ir1clined to put further treatment arrl that he could swim. 3/ .. ' .. 1......a tllll!I;, , lll • ~ - - - -• J'""'(Ktfllll-----■-tt--•---IIS-% .,.., .,, -~~~•..,....•--,_.,..,.sew-•- -¥---- ~-,....,,..·•- .,. very little weight of 2nd plaintiff I s evidence. darrBges for f0,in am sufferirB at K6, DOD. 00. I award him - 3 - As to the 3rd plaintiff, he md n1J Jnalical documents and no reason vras given as to why. ills evidence ms it trot he rod a bone protruding. 1his would entail a very serious injury. There is no evidence as to bis hospitalization at all which is very I am incline::l not to put much weight on bis strange indeai. I would grant him KB,000 daIIBges for pain, evidence as well. suffering arrl loss of amenities. the 1st plaintiff was much about his The evidence of PW3, deceased employees. I would grant, however> that his boat was darrBgB:i arrl that he rn.:ght to be compensated. However, in view of bis failure to prove special damges for bis boat, I will treat such da.rrEges as at la.1-ge. the wretcha::1. beat. _ I grant himK12,000 darrBges fo:t---~ :-. ' r \ On the 4th and 5tgh plaintiffs. I have considerB:l the evidence. I refrain from accepting that evidence on the face of it in view of the inaccurancy of the evidence of the witnesses herein. I would grant the ea.rn:i..n.:Js at K 450 a month. I will also take into account trot a bread earner wo1..lld spend some of bis salary on himnself which I would put at h3.lf. -of his earning. I did not receive any evidence as to when one would retire from eployment I would grant however that such work would not as a fishmonger. be fit for elderly people. In JUY view the older one grows the more lilllikely he is to be employed by a fishIDQDJer as the work requires physical stren:Jtl1. th3.n anythirq else. I would put the age at 45 years and grant e.ach deceass::l 24 am 20 years of I would multiply this with K150 a month purchase respectively. and grant 4th plaintiff K43,200.00 as loss of deperrlency and K36,000 for 5th plaintiff respectively. 4/.' ''' 99' 1111( ..... MMP -ltW 11¥:Mt ■ •• were!M IMftlSWt .c, • .-·• .., .,,..,,.t,.- •-• •• - •m- .. 11- • 1•--...• .. -•.__,.. _ ____ ___ •- ••'"- ,.,, I also grant the plamtiffs costs for this action. - 4 - Pr onouncBi m chambers this 22nd day of November- , 1995> at Blantyre. --i 1'1ea Rffi-IS'IIMU