Mwale v Zakeyo and Another (Civil Cause 339 of 2015) [2022] MWHCCiv 66 (13 January 2022)

IN THE HIGH COURT OF MALAWI CIVIL DIVISION MZUZU DISTRICT REGISTRY CIVIL CAUSE NO. 339 OF 2015 PF A ce cecere rv cernein, nee cent emanenmmnmmunmatiels CLAIMANTS AND TT rcs reese th faeces mnie linet eihaiae ig OREE Bepeinmane 15? DEFENDANT PRIME INSURANCE COMPANY LIMITED. ............00..c00eceeeeseeeeeeeeees 2NP DEFENDANT CORAM: Honourable Justice T. R. Ligowe G. Kadzipatike, Counsel for the Claimant W. Chibwe, Counsel for the Defendant F. Mwakhwawa Luwe, Official Interpreter J. Chirwa, Recording Officer and Court Reporter ORDER ON ASSESSMENT OF DAMAGES Ligowe J, 1. The Claimant seeks damages for personal injuries after sustaining injuries in a road accident. He was a passenger on a two tonne lorry driven by the 1*' Defendant and insured by. the a Defendant. The driver was negligent in that he was sleeping while driving, and as a result, he failed to control the vehicle that it dropped down two passengers carried in the body on top of bags of mangoes. 2. The judgment on liability was made and delivered on 9" July 2018. Here is an order on assessment of the damages for which the Claimant should be compensated with. In his statement of claim the Claimant seeks K3 000 cost the of a police report, special damages which he did not specify, damages for pain and suffering and loss of amenities of life, damages for disfigurement and costs of the action. Pain is attributable to the physical pain caused by or consequent upon the injury or to any necessary surgical operations. Suffering is the 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. Loss of amenities refers to all the enjoyments of life lost or impaired as a result of the injury. The essence is to compensate the plaintiff in so far as money can do it for all the natural and direct consequences of the defendant’s wrongful act. See Admiralty Commissioners v S. S. Susquehanna [1926] A. C. 655. The Claimant’s evidence in a witness statement he adopted on the date appointed for the hearing of the assessment was that he sustained severe injuries including superficial wounds on the left arm, face and hip, a sprained left hand wrist and a sprained right leg. He tendered a medical report from Francisco Palau Hospital at Lumbadzi which however, shows that the nature of injuries he sustained were only the superficial wounds on the left arm, face and hip. The medical report further shows that X-Ray was done but he had no fracture or dislocation or internal injury. It also shows that he sustained no permanent incapacity and that the injuries he sustained were categorised as not serious. The claimant’s further testimony orally was that his left wrist was twisted and his right leg was broken during the accident and he walked using a stick for six months. He also testified that he cannot walk a long distance without his leg swelling and that his front teeth on the upper jaw do not work because of the same injury. In cross examination he confirmed having sustained the fractures he mentioned in his evidence in chief and that he had been examined using X-Ray at Mtengowanthenga and Francisco Palau Hospital. When asked further he said he could not really explain the exact injuries he sustained. He also admitted in cross examination that the fact that his leg swells when he walks a long 10. (.. distance is a serious matter which needed urgent medical attention but he had not gone to hospital again with it. Taking all the evidence together, I find that the Claimant had not been able to demonstrate that he really sustained severe injuries during the accident, but that according to the medical report, he sustained superficial wounds on the left arm, face and hip which were not serious. I also find that the Claimant provided no proof for the payment of K3 000 for the police report. He also said nothing regarding any special damages he might have suffered as a result of the accident. It is trite that special damages should be specifically pleaded and strictly proved. See Zimpita and another v. Okoyo Garage [1991] 14 MLR 532. I further find that there is no evidence regarding any loss of amenities of life and or any disfigurement the Claimant might have suffered. He will therefore be compensated only for pain and suffering. It was held in Chidule v. MEDI, MSCA Civil Appeal No. 12 of 1993 that: - “The general principle in awarding damages is for the Court, after considering all the relevant factors, to arrive at such a sum of money which will put the injured party in the same position as he would have been if he had not suffered the injury for which he is claiming reparation. When the court comes to assess damages for injury it will look at the position as it was at the date of trial. And in assessing damages for pain and suffering the court must consider the pain which the particular plaintiff has suffered and is likely to suffer in future. This is because the circumstances of the particular plaintiff are bound to have a decisive effect on the assessment of damages.” The particular injuries to be considered in the present case are the superficial wounds on the left arm, face and hip. Courts do recognise as did the Supreme Court of Appeal in Malamulo Hospital (The Registered Trustees) v Mangani [1996] MLR 486 that nobody can by any arithmetical calculation, establish the exact sum of money which would represent such a thing as pain and suffering which a person has undergone by reason of an accident. So, to arrive at an adequate sum to compensate a victim with, the courts use conventional figures awarded to individual cases of 12; 13. 14. 15: a similar nature and adjusting the award according to the fall of the value of money. This is to say that injuries of a comparable nature have to be compensated similarly. For the comparable cases, Counsel for the Claimant referred to so many unreported cases in his written submissions. He provided no copies of the said cases to this court. I will mention the few I was able to find by myself in this order. Counsel referred to Zagwazatha v. Attorney General, Personal Injury Cause No. 469 of 2013 (Principal Registry) (unreported) in which the Claimant was awarded K14 million altogether for pain and suffering, loss of amenities of life and disfigurement after sustaining a fracture of two ribs, pneumothorax, fracture and dislocation of the spine, fracture of the left arm, neurological deficiencies of lower limbs (both legs not functioning, and bladder not functioning (incontinence), right knee dislocation with torn ligaments, and hypostatic pneumonia. She was admitted to the hospital for 6 months. Her permanent incapacity was assessed at 100%. Both legs could not function and she was always on a wheel chair with a helper. Counsel also referred to the case of Mpeketula and another v. Kiwi Brands Ltd and Prime Insurance Company Ltd Civil Cause Number 2420 of 2002. The 2™ plaintiff in that case had been hit by the 1“ defendants’ motor vehicle. Consequently the 2" plaintiff violently landed on the tarmac suffering a dislocated right knee, a cut on the right hand and bruises on the right shoulder. A sum of K80 000 was awarded to that 2™ plaintiff as damages in December 2002 for pain and suffering and loss of amenities of life. Counsel further referred to Davison Kambambe vy. Tendai Kaphwiyo and Prime insurance Company Limited Civil Cause No. 2248 of 2008 (Principal Registry) (unreported) where the plaintiff who sustained a femur fracture, multiple injuries on the thigh, collar bone and multiple bruises with a permanent incapacity of 35% was on 16th April 2010 awarded K1 500 000 for pain and suffering, K1 800 000 for loss of amenities of life and K200 000 for disfigurement. 16. Counsel also referred to Madalitso Nyambo v Prime Insurance Co. Ltd. Personal Injury Cause No. 306 of 2018 (Principal Registry) (unreported) where the claimant suffered a fracture of the 2nd, 3rd, and 4th metatarsal of the left foot and soft tissue injury. The foot was cast in plaster of Paris which was removed after a month and 10 days. He was awarded K1 750 000 for pain and suffering as of 8" January 2019. 17. In the end Counsel for the Claimant submitted that the Claimant should be awarded K3 million for pain and suffering and loss of amenities of life. 18. Defence Counsel also provided no copies for the case authorities he relied on in his written submissions. He cited Hopeson Magasa and others v Attorney General and NICO General Insurance Co. Lid. Personal Injury Cause No. 874 of 2012 and Aubrey Solomon and others v Jeremiah Banda and others, Personal Injury Cause No. 736 of 2015 and submitted that K350 000 would adequately compensate the Claimant for the superficial wounds on the left arm, face and hip. I was not able to find either of the authorities. 19. Among all the cases referred to me I find Madalitso Nyambo v Prime Insurance Co. Ltd (supra) more relevant to the present case. The claimant was also awarded damages for pain and suffering only, as this court will to do in the present case. A fracture of the 2nd, 3rd, and 4th metatarsal of the left foot and soft tissue injury in that case are in my view, more serious compared to the superficial wounds on the left arm, face and hip in the present case. The claimant in the present case has therefore to be compensated less than in that case. Considering loss in value of money since January 2019, I find the same amount of K1 750 000 reasonable for the Claimant in this case. So I award the Claimant K1 750 000 for pain and suffering plus costs of the action. 20. Pronounced in open court this 13" day of January 2022.