Tembo v City of Blantyre & National Insurance Company LTD (Civil Cause 1355 of 1994) [1996] MWHC 20 (13 February 1996)

IN THE HIGH COURT OF MALAWI fo PRINCIPAL REGISTRY OR CIVIL CAUSE NO. 1355 OF 1994 SA CTTY OF BLANTYRE is ces se teseetvage wes -.- FIRST DEFENDANT NATIONAL INSURANCE COMPANY LTD cee ne ee SECOND DEFENDANT CORAM : MWAUNGULU, J Counsel for the plaintiff, Chisambilo Counsel for the lst defendant, Ching’ande Counsel for the 2nd defendant, Ching’ ande Interpreter, Selemani JUDGMENT MWAUNGULU, J The plaintiff had judgment on liability. The only matter in this order relates to damages. There is much to say on the damages. Both Counsel argued at length on the heads and various items of damage. There were statements and assumptions made by Counsel which defy the law on damages for personal injuries that it is necessary to restate the broad principles and policy on this area of law. The policy behind damages is, where it is possible and money can do it, to fully compensate the victim for the new situation in which he is because of the wrong done to him. The scope of what has to be compensated, however, is difficult to define. If the problem of remoteness has been overcome and it is decided that the victim is entitled to recover, courts endeavour to adequately compensate the victim. As a guide courts award in accordance with the accepted heads of damages. These heads of damage ensure that all conceivable areas of injury are covered. Courts award for pecuniary and non-pecuniary losses. For pecuniary losses it is a question of Kwachas and tambalas. While there are many factors to consider and mathematically precise information is itself 2 subject to considerations that defy logic, it is still possible to adequately compensate the victim once those figures have been accepted. For pecuniary loss, therefore, full compensation is possible. In Picket - v_- British Rail Engineering (1980) A. C. 136 168 -B-P, Lord Scarman said :- "But, when a Judge is assessing damages for pecuniary loss, the principle of full compensation can properly be applied. Indeed anything else would be inconsistent with the general rule. Though arithmetical precision is not always possible and though in estimating future pecuniary loss a judge must make certain assumptions (based upon evidence) and certain judgement, he is seeking to estimate a financial compensation for financial loss. It makes sense in this context to speak of full compensation as the object of the law." When awarding damages for pecuniary loss the court, although making certain value judgements on matters which are not areas of precise mathematics, is aiming at full compensation where that loss can be referred to precise mathematical figures, a situation that is impossible for non-pecuniary losses. Under non-pecuniary losses the court is aiming at awarding for injury what is recognised by the courts but is incapable of quantification in monetary terms. Courts recognise that any personal injury involves pain and suffering. Pain refers to the physical experience of the nerves. Suffering refers to the mental anguish and experience of the result of the pain and injury itself. Then there is the question of loss of amenities. Here courts are concerned with the loss of the enjoyments of life that attend such injury. A man who enjoyed playing tennis will not play tennis after he loses his leg. This loss has to be compensated. All of these are incapable of quantification. Even if quantification was possible, it would be difficult to attach any meaningful monetary value. It is inherently difficult, therefore, to arrive at a precise award for non-pecuniary losses. Once the loss has_~ been recognised, there is a duty, and courts have noticed that, to compensate the victim. The extent of that compensation must be such that members of the society will be able to say that the 3 victim has been well compensated. As Lord Devlin put it in West -v- Shephard (1964) A. C. 326, 357, the wrongdoer must be able to “hold up his head among his neighbours and say with their approval that he has done the fair thing." It is still difficult, as we have seen, to arrive at the right figure to cater for the myriads of victims with myriads of tastes, capacity to endure pain, etc. The awards, therefore, are based on comparable awards of victims with similar injuries. It is only logical that those who have had similar injuries be similarly compensated. Otherwise there will be an outcry for unfairness and inconsistency. In Wright -v- British Railway board (1938) A. C. 1173, 777C, Lord Diplock Said :- "Non-economic loss ..... is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether judge or jury, the figure must be basically a conventional figure derived from experience and from awards in comparable cases." When awarding damages for non-pecuniary losses courts, therefore, have regard to awards of damage awarding tribunals. It is assumed, correctly in my view, that judges and arbiters who are involved in the exercise acquire and are vested with the knowledge of the circumstances and the considerations that ultimately bare on the awards actually made. The awards that have to be looked at are those within the jurisdiction or another jurisdiction at the same level of socio-economic development. Conventional awards are based on comparison. That comparison cannot be had where the awards come from jurisdiction with disparate levels of economic development. In Jag Singh -v- Tong Fong Ominibus Co (1964) 1 W. L. R. 1382, 1385, Lord Morris, in the Judicial Committee of the Privy Council, said :- "That to the extent to which regard should be had to the range of awards in other cases which are comparable such cases should as a rule be those 4 which have been determined in the same jurisdiction or in a neighbouring locality where similar social, economic and industrial conditions exist." Finally these conventional awards must take into account inflation and changes in the value of money. An award made at a higher value of money and lower level of inflation is not comparable to a similar award at lower value of money and high levels of inflation. A victim of injury stands to lose at the latter level. The wrongdoer stands to gain. An assessor must, therefore, take into account changes in the value of money and level of inflation "for any other view involves the necessary implication that the victims of personal injuries should bear a reduction in the level of their compensation as the value of money falls though there is no rational justification for such reduction." (Moriaty -v- Mclartey (1978) 1 W. L. R. 155). An award of damages for personal injury must cover the losses that have been caused by the wrongdoer. There must be an attempt to compensate for all the pecuniary losses that have been established by the evidence to that end. For non-pecuniary losses, the victim must be compensated to the same extent as those in a position similar to his in the same jurisdiction or another jurisdiction at the same level of social, economic and industrial development. The award must recognise changes in the value of money and level of inflation. As I mentioned earlier, different aspects of the principles that I have tried to lay were countenanced by Counsel. It would not have been neat to consider each one of these aspects as it arose. It is now time to consider specific matters. On the non-pecuniary aspect of the general damages Many awards were referred to me. I am not bound by them for purposes of this award. I should certainly refer to them because they have been brought to my attention. They are useful in so far as they show a yardstick from which comparison should begin. Unfortunately, Counsel for the plaintiff has referred to some awards from England. On the principles that I have just stated, no, if not, negligible, assistance can be had from such awards. Malawi is several centuries away from the level of economic, social and industrial development in the United Kingdom. Further more, Counsel for the plaintiff has submitted in such 5 a manner as to leave the impression that the awards given for injuries of various members of the human body should be added up together where the victim has had more members injured in one wrongdoing. This would result in unreasonable awards. I think it must be stressed that the awards are for pain, suffering and loss of amenities. When a person has more injuries, he has more pain and suffering. It cannot be said that he has this much pain as to lead to diabolic result that the damages for each member of the body should be added up. In relation to pain and suffering and loss of amenities, there is dispute about the actual injuries that were occasioned. There are some injuries which could only be ascertained by X-rays and surgical scrutiny. Counsel for the defendants says that these, although raised by the plaintiff, needed to be proved by the doctor. Counsel for the plaintiff, however, has not called the doctor to give evidence. The point raised by Counsel for the defendants raises a problem which should attract urgent legislative action. The contents of a medical opinion are clearly hearsay and at best opinion. At common law, in civil proceedings hearsay evidence is, except in the few known circumstances, inadmissible. Lord Mansfield C. J. in Berkeley Peerage, (1811) 4 Camp. 401, 415, said :- "By the general rule of law, nothing that is said by any person can be used as evidence between the contending parties, unless it is delivered upon oath in the presence of those parties ..... Upon this subject, the laws of other countries are quite different, they admit evidence of hearsay without a scrapple." In England, the law was amended by the Evidence Act 1938. Section 1 of the Act provided :- "(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say - 6 (i) if the maker of the statement either - (a) had personal knowledge of the matters dealt with by the statement; or (b) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and (ii) if the maker of the statement is called as a witness in the proceedings Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. (2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence - (a) notwithstanding that the maker of the statement is available but is not called as a witness; (b) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy in such manner as may be specified in the order or as the court may approve, as the case may be. (3) Nothing in this section shall render admissible as evidence any statement made by a= person 7 interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. (4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible. (5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the foregoing provisions, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as witness, act on a certificate purporting to be the certificate of a registered medical practitioner and where the proceedings are with a jury, the Court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted." The effect of this provision, in the context of medical reports, can be appreciated. The medical report could be tendered without calling the doctor. The practice under the section is illustrated by Reed -v- Columbia Fur Dressers and Dyers Ltd (1964) 3 All E. R. 945, 946, per Paull J. The Evidence Act 1938 has been replaced by the Civil Evidence Act 1968. It is a comprehensive Act on admissibility of hearsay and expert evidence. In Section 8 it provides for introduction into the Rules of the Supreme Court Rules to govern matters it prescribes. These changes have been introduced in Order 38 of the Rules of the Supreme Court. These rules, based as they are on the 1938 and 1968 statutes in England, and are not part of our law (Section 39 of the Courts Act). It is significant that these changes were introduced in criminal proceedings (Section 180 of the Criminal Procedure and Evidence Code). It sounds odd that similar development was not extended to civil proceedings. So much so that on the law as is now, a acta ii mc Ei Rm at - ~ - sii 8 medical report cannot be introduced unless the doctor gives evidence. This is a question of admissibility . It cannot be overcome by consent of the parties. It is an area that needs immediate legislative intervention. For purposes of this case Counsel for the defendant is right in warning about certain aspects of injury that Mr. Tembo suffered as long as their proof is clearly based on the medical report that was tendered. Mr. Tembo, however, did mention some injuries which he could clearly see and which really do not need verification by a doctor. It also appears that certain injuries although internal were made known to him and he could confirm to the Court that they were there. This refers to the fracture in the ribs and the pelvis, to the twist in the neck and the head injuries. These were first confirmed at the Queen Elizabeth Central Hospital. They were further ascertained by the examination at the Malamulo Hospital. Equally, there was a fracture on the lower back spine. This he was told was affecting his sight. He would verify the impairment to his vision. He was bleeding inside the lungs. He was told that he would undergo an operation to get blood out. A hole was drilled on one part of the chest to enable to remove the blood. For the most time that he was treated here Mr. Tembo had acute Spasmic pains. He was in hospital for several weeks. When he was discharged, he was advised to lie on for a further few weeks. There was little improvement. On recommendation of a local neurosurgeon, Mr. Tembo had to go to South Africa for further treatment. It is not necessary to detail all the injuries and treatment, some of it scaring, that Mr. Tembo went through. For what it is worth, the evidence proves that Mr. Tembo had serious injuries that necessitated the intense treatment that he went through. His overall assessment is that there is improvement. He has severe pains when he works. Obviously for the injuries he has sustained he will not be able to carry his usual pursuit in lawn tennis. He has to some extent even been affected in enjoyment of some aspects of the demands of his job. He does not hear well. In awarding damages for pain and suffering overall pain and suffering should be considered. The pain is likely to be intense where there are several fractures 9 to several parts of the body. There is the further pain which the victim has to undergo as different surgical steps are taken on different occasions in the course of treatment. In these circumstances the pain undergone might be much more than where one in an accident loses a member of the body. It may be useful to consider the amenities that are involved. Others may be very rewarding, particularly those associated with ones profession. Then one must consider the actual injuries. Six ribs were broken, a fracture to the pelvis, and the back and neck. The appropriate award at current values of money and inflation is K60,000 for pain and suffering and loss of amenities. There are also claims for pecuniary losses. The first category relates to expenses that were incurred: transport payments, hiring charges, medicai bills, future and present hotel accommodation while in South Africa. All these, if proved, are claimable in an action for damages for personal injuries. These are matters of proof. The plaintiff has to show that the expenses were incurred. On transport and air fares, the plaintiff is entitled to K6,578.04 as submitted by Counsel for the defendant. Although the plaintiff claims 20,000, this is not substantiated by evidence. K2,430 is what was already paid for hiring a taxi. The cost of air fare was put at K4,148.04. Although the receipt is regarded hearsay by the Counsel for the defendant, it is quite clear that Mr. Tembo paid that amount. It should be included with the claim for air fares in the claim for transport and fares. On hotel accommodation there is a claim for K15,000. Counsel for the defendant claims that this has not been substantiated. He finds it improper for the plaintiff to claim any sum at all because he was accommodated by friends. Mr. Tembo does not indeed point to the claim of K15,000. He does, however, say that he borrowed R5,000 for upkeep in South Africa. He still had to pay other expenses. Mrs. Tembo said that instead of staying in an hotel a guest house was offered to them. While they paid for food and taxis, it is not clear whether they paid for accommodation. Counsel for the defendant says that this claim should be dismissed. If Counsel’s suggestion, and it appears to be the case, is that the accommodation, being proffered by 10 friends, should not be paid for, I have extreme difficulties with it. Such a result would only benefit the wrongdoer. It would be very unacceptable that a wrongdoer should not pay for expenses for which he is really liable because others known to the victim out of benevolence want to help. The matter is actually covered by authority with which I would be the most reluctant to differ. For in England, in Parry -v- Cleaver (1970) A. C. 1, 14, in the House of Lords, Lord Reid said :- "It would be revolting to the ordinary man’s sense of justice, and therefore, contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer." In Northern Ireland, in Redpath -v- Belfast and Country Down Ry (1947) N. I. 167, the plaintiff, victim of a railway disaster, received money from a distress fund to which the public had made voluntary contribution. The court refused to make any deduction for this sum. Andrews, C. J. said :- "It would be startling to the subscribers to the fund if they were to be told that their contribution were really made in ease and for the benefit of the negligent railway company .... The inevitable consequences in the case of future disasters of a similar character would be that the springs of private charity would be found to be largely if not entirely dried up." In the particular case, if the cost of accommodation was proved I would be the most astute to have the wrongdoer pay for it to the last penny. The plaintiff says that he expended R5,000 in South Africa. He has produced the voucher for which he borrowed the money from his employers as well as foreign exchange approvals for it from the Reserve Bank. He is entitled to claim the expense at the reigning exchange rate at the time of payment. He is not entitled to the K7,000 , an estimate of what his friends would have paid, which he now claims. There is no basis on which the amount is worked out. The 11 expenses have to be proved and at that strictly. Counsel for the defence is right in his submission that what was spent on him by his friends cannot be ascertained. I agree with the principle Counsel has cited to me from the decision of Bacon, C.d. if Ratcliffe -v- Evans (1892) 2 B. 524 :- "AS much certainty and particularity must be insisted on ... in... proof of damages as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vaniest pedantry." On the medical expenses, Mr. Tembo claims K60,000. I agree with Counsel for the defendant that Mr. Tembo should only claim the sum actually proved by the evidence. This is R6,580 at the value of the Rand at date of payment if already paid, but at the value of Kwacha now if not paid, and K5,997.51. The prospect for future medical expenses has been established to my satisfaction. On future medical expenses, the plaintiff asserts that he has been informed that these will be necessary. There is a tentative estimation of what the next treatment would be. The medical report, as we have seen, is inadmissible on the nature of the injuries that the plaintiff suffered because the doctor was not called. The report was, however, also a communication to Mr. Tembo on what the future expenses would be. I do not think that, as Counsel for the defendants contends, it was necessary for the doctor to appear in court to inform the court that the future treatment will be required. Mr. Tembo was informed. It suffices. Equally Mr. Tembo was told the estimate of the cost of future medical expenses. The plaintiff should recover these. He will recover R22,973.27. On hiring charges, I agree with Counsel for the defendant that the plaintiff can only recover the sum of K37,676.25 actually proved. The plaintiff was claiming K40,000. There are claims for damage to a shirt, a suit and brief case. Mr. Tembo led evidence on their value. These being claims for special damage, they should have been pleaded to put the defendants on the alert. The claims fail purely on that fact alone. 12 The other claim on special damages on which there has been much contention is the plaintiff’s claim for K30,000, the value of the car that was destroyed in the accident. The claim for K30,000, the total value is odd, in so far as the plaintiff did accept the sum of K17,500 according to a discharge with the second defendant. If anything the claim should have been for K12,500, the balance. The sum of K17,500 paid by the second defendant was a result of tough discussions. The plaintiff through his wife was in touch with legal practitioners, Khuze Kapeta and Company. It looks like two valuers, one elected by the plaintiff, put the value of the car at K15,000 and K20,000. The sum of K17,500 signed for by the plaintiff's wife was a median of the two valuations. The plaintiff maintains that he had rejected the amounts all along. His wife signed only because of the pressure that she had from those who had hired the car. To buttress the argument the words in "full settlement" have been deleted. Mrs. Tembo says that they were deleted because she did not agree with the amount. The legal practitioner, who signed for the second defendant, actually prepared the discharge, says that it was understood between them that the discharge was applicable in its full extent to the claim for the motor vehicle. The words deleted were only so because other claims for personal injuries were still on. I thought the legal practitioner for the second defendant was more credible on this aspect. The document, without the cancellation, purported to absolve the insurer from any claim of whatever nature arising from an accident which occurred on the 17th of April, 1993. That could not be if the claim for personal injuries was not settled. It could not be said that the payment was "in full and final settlement". In any case the document says that the sum was "settlement for the damaged car (total loss)". It is trite law that such discharges bind those who enter them. The only exception is whether there is an obvious imbalance. One such imbalance is where one of the parties is acting without legal advice. In that case the court will not sanction the discharge. I had so held when I was Registrar in Nyirenda -v- Malawi Housing Corporation Civil Cause No. 25 (1990). There are, however, decisions of this court to the same effect {Bagus -v- Shire Limited Civil Cause No 528 (1993) and Manda -v- City of Blantyre Civil Cause No. 25 (1990)}. The question then is whether the party was advised by Counsel. In this particular case it is rs clear that the plaintiff's wife was acting under advice. On the generality of the evidence before me it is plain that she acted on the basis of that general advice than the pressure of pursuit from those who hired them the car. This claim also fails. On the claim for general damages there is a claim for loss of earning capacity. The first point taken by Counsel for the defendant is that no evidence was laid. Consequently this court has no basis on which to make the assessment. Counsel, however, concedes that the plaintiff has not lost his earnings. He was earning K3,800 per month. He now earns K20,000. He argues, therefore, that no award should be made on it. When the victim is working and it is proved that he has had a reduction in his earnings on account of the injury, this is a loss recognised by the court for which there must be compensation. In practice there will be, and my view is that there need not be, a claim as special damages for the amount actually lost up to the date of judgment. The future loss will be arrived at by the usual way of measuring general damages, that is by working out what his loss will be like in future after taking into account that the award is made well before the money is earned and could be re-invested. Where there has been no change in earnings or as was the case here, there has been in fact an increase, there cannot be a claim for loss of earnings. Courts, however, are not naive. They do not approach the problem from the perspective that no damages should be awarded because there is no loss of earnings or there is an increase in earnings. They consider the prospect of the victim losing the job because of the injuries which now appear to have no impact on his earnings. Where there is such a prospect courts have made awards under the style of loss of earning capacity to distinguish it from loss of earnings (Smith -v- Manchester Corporation (1974) 17 K. I. R. I; Clarke -v- Rotax Aircraft (1977), W. L. R. 1570; and Cook -v- Consolidated Fisheries (1977) ICR 63d). The prospect of such an advantage must be substantial. {Moeliker -v- Reyrolle (1977) I. W. L. R. 132}. The question turns out on the nature of the injuries, the qualification, professional or otherwise of the victim, and the labour market. The nature of the injuries might be so devastating that even in a stable economy and a good qualification the job could still be lost. In Martin -v- John Mowlen and Co. Ltd 14 1951 C. A. No. 272, Lord Denning approved of this statement from the court below :- "Employees must consider their own interests, and, as the time comes when anyone has to be stood off, as the expression is, quite obviously they do not stand off a man least capable and the man who has been incapacitated to a certain extent." The nature of the injuries here leave the prospect of a reduction in earnings or loss of a job a real and substantial possibility. Where the prospect is substantial I would suggest that an award in several thousands of Kwachas would be appropriate. Where the prospect is serious awards above K10,000 would be appropriate. In this case the appropriate award is K6,000. The claim for interest on the general damages should fail. Interest can be claimed under statute. At common law interest can only be claimed under contract . In equity interest could be awarded as an ancillary relief to equitable remedies such as specific performance, rescission and taking of an account. The court could at equity, therefore, award interest where the money was obtained by fraud or where money was withheld or misapplied by an executor, or anyone in a fiduciary position. At common law interest could not be paid for damages in personal injuries or wrongful death. In England, however, there was limited development in 1934 and interest could be charged on limited number of claims. Total change was introduced by the Administration of Justice Act 1969 which made the award of interest mandatory rather than discretionary in cases of personal injury and wrongful death. This court has limited power to grant interest in Section l1l(a) (v) of the Courts Act. This, however, is only in relation to debts, sums due on taking accounts between parties or sums found due and unpaid by receivers or other persons liable to account to the High Court, not damages. There is no authority, therefore, under statute or common law to award interest for damages. Equally unusual is the claim for exemplary damages. Tt must be extremely rare for the court to award exemplary damages in a claim for negligence. I do not 15 think this is a case in which I would ever even contemplate creating new ground. In all, therefore, there will be damages for the plaintiff for as claimed. Pronounced in Open Court this 13th day of February, 1996. Solicitors Sacranie Gow and Company for the plaintiff Savjani and Company, for the defendants