Nankhumwa ( Suing on behalf of Owen Nankhumwa) v Charles and Prime Insurance Company Limited (Civil Cause 929 of 2019) [2022] MWHCCiv 38 (23 June 2022)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 929 OF 2019 BETWEEN FESTON NANKHUMWA... See ee eee eee REE Hee HOP Tee eee eee eee ee OF CoP ee Cee Fee PE Fee OO Cortese CLAIMANT (Suing on behalf of OWEN NANKHUMWA) AND LUKAS CHARLES... 004 sesecee see ces cossesesscnn sess ane cer cesses cee seeses seessooseee sss ssf) DEFENDANT PRIME INSURANCE COMPANY LIMITED... ... 004.00 000 vee ces cer cesses cee senses ssone2 > DEFENDANT CORAM: KAPASWICHE : ASSISTANT REGISTRAR (AR) Mr. Kaunde ; Counsel for the Claimant Defendant : Absent/ Unrepresented Mr. Kumwenda : Clerk/ Official Interpreter ORDER ON ASSESSMENT OF DAMAGES fy BACKGROUND This is my ruling on a claim for damages for pain and suffering; loss of amenities of life and disfigurement; loss of earnings; permanent incapacitation, mental anguish and psychological harm, This assesment of damages follows entering of a default judgment against the Defendants on the 1% day of December 2020. A notice of assesment of damages was issued on the 224 day of May 2021 and was served on the defendants accordingly. The application was supported by a witness statement deponed by the Claimant himself. Skeleton arguments were also filled and the claimant in essence claims MK7, 500, 000.00 as total compensation for all the three heads of the claims. The Defendants were served with the notice of assesment but they failed to appear before Court for the assesment for reasons not known to this Court. THE EVIDENCE The evidence came from the witness statement of the Claimant. The claimant brings the action in his own capacity and on behalf of Owen Nankhumwa who happens to be a minor. The Claimant happens to be father of the said Owen Nankhumwa. On 21%* March 2019 the minor left home in the morning going to Buluzi Primary School at a place near Bypass Road in the city of Lilongwe where he was involved in a road accident. The minor was walking on the road with his friends and he was hit by a motor vehicle, a Toyota Probox Saloon Registration Number NU 890 driven by the 1** Defendant and insured by the 2"¢ Defendant. As a result of the accident, the minor sustained injuries which included flactured clavicle, a cut on chin, contusion of ankle, hematoma of frontal part of head, multiple bruises on hand, a cut on neck, permanent incapacitation assessed at 28% and disfigurement. The claimant proceeded to testify that the injuries that he sustained have left him with some disfigurements that have drastically affected his wellbeing including his school performance. A medical report as well as police report was tendered in evidence. THE LAW ON DAMAGES The law generally provides that a person who suffers bodily injuries or Josses due to the negligence of another is entitled to recover damages. The fundamental principle which underlines the whole law of damages is that the damages to be recovered must, in money terms, be no more and no less that the Plaintiff’s actual loss. The principle was laid down in numerous case authorities more particularly by Lord Blackburn in the case of Livingstone v. Rawyards Coal Company (1880) 4 AC 25 in the following terms: “where any injury or loss is to be compensated by damages, in settling a sum of money to be given as damages, you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered loss, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.” Be that as it may, it ought to be borne in mind that it is not possible to quantify damages for pain and suffering, loss of amenities and deformity as claimed in this matter with mathematical precision. As a result, courts use decided cases of comparable nature to arrive at awards. That ensures some degree of consistency and uniformity in cases of a broadly similar nature: See Wright -vs- British Railways Board [1983] 2 A. C. 773, and Kalinda -vs- Attorney General [1992] 15 M. L. R. 170 at p.172. As such this court will have recourse to comparable cases to arrive at the appropriate quantum of damages for the plaintiff. SUBMISSIONS AND ANALYSIS DAMAGES FOR PAIN AND SUFFERING ‘Pair’ is used to suggest physical experience of pain caused by consequent act upon the injury while ‘suffering’ relates to the mental elements of anxiety, fright, fear of future disability, humiliation, embarrassment, sickness and the like as was held in City of Blantyre v. Sagawa [1993] 16 (1) MLR 67 (SCA). Three cases were cited in making a prayer under the head of damages for pain and suffering. DAMAGES FOR LOSS OF AMENITIES OF LIFE The head of loss of amenities of life is awarded to cater for loss of all things that the claimant used to be able to do, see and experience and that these things can no longer be seen or be done or be experienced due to the impact of the injury in question. In the case of Mtika v Chagomerana t/a Trans Usher (1997) 2 MLR 123, 126; the court explained loss of amenities of life in the following terms; “there is loss known as the loss of amenities of life. This covers the loss caused by the injury in that the plaintiff will be unable to pursue the leisure and pleasures of life that he used to enjoy but for the injury” DAMAGES FOR INCAPACITATION AND DISFIGUREMENT Damages for disfigurement are awarded for some form of permanent scars or deformity left on the body of the victim as was held in the case of Tabord v. David Whitehead and Sons (Mw) Ltd, (1995) 1 MLR 297 (SCA). In the case of James Chaika v Nico General Insurance Co Ltd Civil Cause number 909 of 2007, the court stated that disfigurement is not a matter to be taken lightly and casually as it is something that one has to permanently live with. ASSESMENT OF FACTS AND COMPARABLE AWARDS The Claimant prayed for a sum of MK22,515,000.00 as total damages on heads of claims. The Claimant cited a number of comparable awards justifying the prayer made in the present matter. The following are comparable case authorities that inform the Claimants prayer on award of damages for pain and suffering, loss of amenities of life and disfigurement and incapacitation. The first case was the case of Patricia Demesani Bannet v. Isaac Lizimba and Another, Civil Cause Number 811 of 2011 (unreported) where the Claimant was awarded MK2,000,000,00 on 20" July 2015 for pain and suffering after he sustained sprained ankle; multiple bruises over the body and face and was admitted in hospital for a day. The second case is that of Habert Lidaka v. Charles Van Remoore and Prime Insurance Company Limited; Personal Injury Cause number 124 of 2015 (High Court, Zomba district registry) where the claimant sustained soft tissue injuries, multiple body wounds, bruises and general body pains. The court awarded MK2, 300, 000.00 in July 2015. Considering the fact that the injuries suffered in the present case by the Claimant are flactured clavicle, a cut on chin, contusion of ankle, hematoma of frontal part of head, multiple bruises on hand, a cut on neck, permanent incapacitation assessed at 28% and disfigurement; the Claimant prayed for an award of MK5,000,000.00 as damages for pain and suffering. The case of Lunduka v. Zenengeya and United General Insurance Company Limited, Civil Cause Number 1144 of 2016 was cited on damages of loss of amenities of life. In that case, the Claimant suffered injuries that meant that she could no longer participate in challenging activities and she was awarded MK3,000,000.00. The Claimant prayed for an award of MK7,000,000.00 in the circumstances of the present case, On disfigurement, the Herbert Lidaka case was cited to justify a prayer of an award of MK5,000,000.00 in the present case. On incapacitation, the prayer was that this Court should make an award of MK5,500,000,00, The argument from Counsel for the claimant was that this court should award more damages than the ones awarded in the above three cases on the basis that the said awards were made in 2015 and 2016 and further that the claimant of the present case suffered fracture clavicle, cut on chin, contusion of ankle, haematom frontal part of head, multiple bruises on hand, cut on the neck, nasal bleeding and has 28% permanent incapacity. The evidence shows that the Claimant of the present matter was unconscious after the occurrence of the accident and is permanently incapacitated at 28% and it is clear that he is continuing suffering due to an accident he never foresees on that fateful day. Much as | agree that the Defendant endured severe suffering due to the severe injuries suffered and the fact that the Claimant has long time incapacitations; | still feel that the amount claimed is still on the higher side. FINDING Having appreciated all the circumstances of the present case, this Court proceeds to award a sum of MK12,000,000.00 as reasonable recompense on all heads of claims made by the Claimant. Judgment is accordingly entered in favour of the claimant in the sum of K12, 000,000.00. The Claimant is further awarded costs of this action, A / MADE IN CHAMBERS THI ova DAY OF JUNE 2022 ANTHONY PINLIZANI KAPASWICHE ASSISTANT REGISTRAR