Mtewa v Chivundula & Anor. (Personal Injury 398 of 2017) [2018] MWHC 782 (10 July 2018)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 398 OF 2017 BETWEEN CHIPILIRO MTEWA (Suing as the beneficiary of the Deceased Estate of PATIENCE MTEWA ..................................................... CLAIMANT AND CHRISTIAN CHIVUNDULA ................................................................... 15r DEFENDANT PRIME INSURANCE COMPANY LIMITED ............................................ 2No DEFENDANT CORAM HER HONOUR MRS. BODOLE, ASSISTANT REGISTRAR Khan, of Counsel for the Plaintiff Counsel for the Defendant, absent Ms. l<azembe, Court Clerk ORDER ON ASSESSMENT OF DAMAGES Introduction The claimant brought proceedings against the defendants claiming general damages, damages for pain and suffering, loss of expectation of life, loss of dependency, loss of amenities of life, and costs of the action. Judgment on liability against the defendants was entered on 9th April, 2018. - - - - - - - - - - - - The Evidence The cl aimant is a beneficiary of the estate of Patience Mtewa, deceased. The deceased was involved in an accident on 12th November, 2017. She died as a result of th e accident. At the time of the accident, the deceased was aged 3 months old and w as enjoying a vibrant happy health life. Th e cla imant was a proud father of the deceased. Her birth brought so much joy in his fami ly. He did not contemplate that death would take her at such a young age. He had all the hope that the deceased would grow up and take care of her family. He pra yed to the court to award him damages for loss of expectation of life and loss of dependency, and costs fo r obtaining the Police and medical reports amou nting to K23,000 .00 . General Law on Damages A perso n who suffers bodily injuries due to the negligence of another is entitled to the reme dy of damages . Such damages are recoverable for both pecuniary and non-pecuniary losses. The principle underlying the award of the damages is to co mpensate 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). Th e 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 deval uation - Kuntenga and Another v Attorney General Civil Cause No. 202 of 2002. Th e non-pecuni ary head of damages include pain and suffering, loss of amenities of life and disfi gurement. 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 ha s not proved special damages reasonable compensation in the circumstances can be awarded. - - - - - - Loss of Expectation of Life Da mages for loss of expectation of life are claimable by a claimant where his inju ries have red uced his expectation of life - Flint v Lovell {1935) 1 KB 354. They are exten ded t o actions which have survived for the benefit of the deceased's estate and is th us available to the personal representatives of his estate. In assessi ng the damages, the thing to be valued is not the prospect of length of days but of a predominantly happy life- Venham v Gambling [1919] AC 157. The da mages are supposed to be modest and the sum is supposed to be conventional on e - Ch ikoti v Attorney General [2006] MWHC 28. behalf and on behalf of dependents of Mrs. Neles Linly Mbesa (deceased)] Pe rsonal Injuries Cause No. 117 of 2014 the deceased died aged 59 years. The cou rt made an aw ard of K900,000.00 as damages for loss of expectation of life. In Jabulani Mbesa [on his Loss of Depend ency Th e fo re most t hing in this head is the amount of dependency. That is ascertained by deducting from the wages earned by the deceased the estimated amount of his ow n personal and living expenses. In Malawi this is estimated at a third of the decea se d's inco me - Chikoti v Attorney General {supra). Where the deceased's monthly inco me is unascertained, the court awards a sum equivalent to what a domestic wo rke r earns - Kenson Shapu v NICO General Insurance Company Lim ited Civi l Cause Number 222 of 2007 {unreported). In calculating the damages, co u1-t s use the mu lt iplicand and multiplier formula . The multiplicand is a figure re prese nti ng t he deceased's monthly earnings while the multiplier is the figure re pr·ese nting the est imated number of years the deceased would have lived if not fo r th e w ro ngf ul death. The product of the multiplicand and the multiplier is m ultipl ied by 12 re pre senting the number of months in a year. Th e d ifficulty arises when the deceased is a child of tender age. In Samuel Chawanda on behalf of M. Chawanda (Deceased) and Other Dependents v the Attorn ey General Civil Cause No. 3556 of 2002 the court stated that "The obvious difficulty herein is that the deceased could not be employed due to his tender age which then has an implication on his earning capacity and consequently on the dependency on him by the plaintiff and others herein. But this state of affairs does not mean that an award for loss of dependency cannot be made." In thi s case the deceased died aged 12 years. The court adopted the domestic servants' minimum wage as the multiplicand. Th e W orld Hea lth Organization puts the life expectancy for females in Malawi at 59 .9 yea rs - • '~ ~ 1::Jlifeexpectancy.com/malawi-life-expenctancy. The court takes into account the fact that there would have been other factors that would have shortened the deceased's life. The claimant lost his daughter as a result of the accident. The deceased had lived a predominantly happy life with her family. The claimant has been deprived the enjoyment of such a life. In view of the decided cases herein cited, and in view that th e awards were made some time back, I award the claimant a sum of Kl,500, 000.00 as damages for loss of expectation of life. The clai mant's daughter was aged 3 months at the time of her death. She might have lived into her 50s had she not died. I have regard to the statistics on life ex pecta ncy in Malawi that pegs it to around the range of 59 years for women. The dece ase d possib ly had around 59 more years to live had it not been for her death . Th at f igure of 59 years shall be reduced to cater for eventualities of life that may have reduced her life expectancy in any event. She was of tender age and had yet to go t hrough the under-five year period, adolescence and later child bearing age w hich are threats to life itself. I make a reduction of 25 years and so adopts the multip lier of 34. I adopt the approach in Chawanda on behalf of M. Chawanda (Deceased) and Other Dependents v the Attorney General (supra). The minimum w age or domestic worker's earnings which is K25,012.00 would be used as a m ultiplica nd since there is no evidence as to how much the deceased was earning. Th e awa rd und er this head would, therefore, be K25,012.00x12x34x2/3 which is K6,803,264.00. Special Da mages Special da mages are supposed to be pleaded and proved. There is no evidence to sh ow t hat th e claimant expended the amount he is 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 claimant had to travel to the hospital from home in order to obtain the medical report. Reasonable compensation for that is fair and just. I, therefore, award the claimant a sum of K2,500.00 as costs for obtaining the medical report. I also award the claimant a sum of K3,000.00 as costs for obtaining the Police report. Conclusion The claimant is awarded a total sum of KB,308,764.00 as damages. The claimant is also awarded costs of the action. Pronounced in court this 10th day of July, 2018 at Blantyre. ~ E. BODOLE (MRS) ASSISTANT REGISTRAR 5