Mimanyima and Mereka v Prime Insurance Company Limited (Personal Injury Cause 347 of 2013) [2018] MWHC 1258 (2 May 2018)

UiBRARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 347 OF 2013 BETWEEN MARY MIMANYIWA .......ccsccssreccscsrecessssrsceeccnerscsscesseesearsssessanasesersee cess 1°’ CLAIMANT BATSON MERA sissirsscnsssnencsccmnmencrmecnmemeanmrnnGe ntmieNENED 2° CLAIMANT AND PRIME INSURANCE COMPANY LIMITED .........scscsssresssssersecscseeecenseeseecenses DEFENDANT CORAM : HER HONOUR MRS. BODOLE, ASSISTANT REGISTRAR Kizito, of Counsel for the Claimants Chisale, of Counsel for the Defendant Ms. Kazembe, Court Clerk ORDER ON ASSESSMENT OF DAMAGES Introduction The claimants brought proceedings against the defendants claiming damages for pain and suffering, loss of amenities of life, special damages and costs of the action. Judgment on liability was entered for the claimants on 20" December, 2016. The matter has now come for assessment of damages. The Evidence On 10" February, 2013 the 1* claimant was a pillion passenger on the 2™ claimant’s bicycle. They were coming from the direction of Chitakale heading towards Mulanje Boma. Upon arrival at Chitakale Banja la Mtsogolo, they were overtaken by the defendant’s insured motor vehicle registration number MJ 4891 Toyota Hiace Minibus which then immediately and without warning stopped in front of the bicycle causing the 2nd claimant to collide with it. As a result of the accident, the claimants sustained serious injuries. According to the medical reports presented, the 1st claimant sustained very deep cut wounds on the forehead, soft tissue injuries on the right and left leg associated with numbness. In her oral testimony, the 1° claimant testified that she was injured on top of the right eye and that the eye itches a lot when she is outdoors on the sun and tears come out. The itching has not affected her eye sight because she can see properly. She feels pain on the left ribs where she fell on during the accident and she feels pain after working hard. She is able to do household chores. The 2™ claimant sustained multiple bruises on the right and left ankle joints and the buttocks. He earns a living as a pedal cyclist. He now has a hard time cycling for long distances as he used to prior to the accident as he has to sit on his wounded buttocks for a long period of time which causes him considerable pain. The special damages being claimed the claimants are K3,000.00 and K4,000.00 as costs for obtaining Police and medical reports respectively. General Law on Damages A person who suffers bodily injuries due to the negligence of another is entitled to the remedy of damages. Such damages are recoverable for both pecuniary and non-pecuniary losses. The principle underlying the award of the damages is to compensate the injured party as nearly as possible as money can do it — Elida Bello v Prime Insurance Co. Ltd Civil Cause No. 177 of 2012 (unreported). The damages cannot be quantified in monetary terms by use of a mathematical formula but by use of experience and guidance affordable by awards made in decided cases of a broadly similar nature — Wright v British Railway Board [1983] 2 AC 773. The court, however, considers the time the awards were made and currency devaluation — Kuntenga and Another v Attorney General Civil Cause No. 202 of 2002. The non-pecuniary head of damages include pain and suffering, loss of amenities of life and disfigurement. These are assessed by the court. Pecuniary loss must be pleaded and proved. In Renzo Benetollo v Attorney General and National Insurance Co. Ltd Civil Cause No. 279 of 1993 (HC) the court held that where a party has not proved special damages reasonable compensation in the circumstances can be awarded. Pain and Suffering Pain and suffering is attributable to the claimant’s injury or to any necessary surgical operations and mental anguish such as that suffered by a person who knows that his expectation of life has been reduced or who being severely incapacitated, realizes the condition to which he has been reduced — Sakonda v S. R. Nicholas Civil Appeal Cause No. 67 of 2013. It is clear from the evidence that the claimants went through a lot of suffering and were in great pain and are still suffering. The 1st claimant sustained very deep cut wounds on the forehead, soft tissue injuries on the right and left leg associated with numbness. She was injured on top of the right eye and the eye itches a lot when she is outdoors on the sun and tears come out. She feels pain on the left ribs where she fell on during the accident and she feels pain after working hard. The 2™ claimant sustained multiple bruises on the right and left ankle joints and the buttocks. He is unable to cycle for long distances as that causes him a lot of pain. Loss of Amenities of Life Loss of amenities is attributable to deprivation of the claimant’s capacity to engage in some sport or past-time which he formerly enjoyed — Kanyoni_v Attorney General [1990] 13 MLR 169. It means that he is incapable of performing some activities he used to do. The 1* claimant feels pain after working hard. This means that she can no longer work as hard as she used to. The 2"? claimant sustained multiple bruises on the right and left ankle joints and the buttocks. He is unable to cycle for a long time as that causes him a lot of pain. The 2" claimant earns his living as a pedal cyclist. His livelihood has, therefore, been taken away from him. Award of Damages In Kennedy K. Nyirenda v Kondwani Msumba and Prime Insurance Company Limited Personal Injury Cause No. 22 of 2016 the claimant sustained a deep cut wound from the laces to inside the ankle, a scar and bruises on his leg. The court awarded the claimant K1,200,000.00 as damages for pain and suffering, and K700,000.00 as damages for disfigurement on 20" June, 2017. In Trifonia Kaisi v Veramo Mukomera and Prime Insurance Company Limited Personal Injury Cause No. 482 of 2014 the claimant sustained multiple cuts on the chest, legs and on both elbows. She also had a bruised face. The court awarded the claimant a sum of K1,800,00.00 on 9" June, 2016. The injuries suffered by the claimants in the present case are more or less similar to the ones suffered by the claimants in the cases cited above. |, therefore, award the 1° claimant a sum of K1,500,000.00 as damages for pain and suffering, and K300,000.00 as damages for loss of amenities of life. | award the 2" claimant a sum of K1,200,000.00 as damages for pain and suffering and K500,000.00 as damages for loss of amenities of life. Special Damages Special damages are supposed to be pleaded and proved. There is no evidence to show that the claimants expended the amount they are claiming for obtaining the medical report. If some money had been spent, that should have been shown to the court. However, this court is mindful of the fact that the claimants had to travel to the hospital from home in order to obtain the medical report. Reasonable compensation for that is fair and just. |, therefore, award the claimants a total sum of K4,000.00 as costs for obtaining the medical report. | also award the claimants a sum of K3,000.00 as costs for obtaining the Police report. Conclusion In conclusion, the 1st claimant is hereby awarded total sum of K1,800,000.00. The 2" claimant is awarded a total sum of K1,700,000.00. The claimants are awarded a total sum of K7,000.00 as special damages. They are also awarded costs of the action. Made in court this 2"? day of May, 2018 at Blantyre. EDNA BODOLE (MRS) ASSISTANT REGISTRAR