Ngwira & Anor. v Maliselo & Another (Civil Cause 402 of 1993) [1993] MWHCCiv 52 (31 May 1993)

IN 'IHE HIGH CXJ(JRr OF MALAWI PRilCIPAL REGISTRY CIVIL CAUSE NU11BER 402 OF 1993 BETWEEN: SA11SJN NGWIRA l1ULAWONA NGWIRA . . . . . . . . . . . . . . . . . 1ST PLAINTIFF . . . . . . . . . . . . . . . 2ND PLAINTIFF IDIB SUING THOOlGH 11RS S. NGWIRA THEIR tlOIBER and FELIX tlALISELO T. N. t/a CDNTACT DRILLERS l1AHO:t1ED . . . . . . . . . . . . . . . . 1ST DEFENDANT , . . . . . . . . . 2ND DEFENDANT OJRAI1: W. W. CCfTD, DEPUTY REGISTRAR NkhoIIE., Counsel for the Plaintiffs OOIO. DmIIY RffiISffiAR RULilG The plaintiff's claim is for da:rrages for personal injuries sustained as a result of an accident causB:i by the ne:.:rligent drivirB of a motor vehicle re:.:ristration number BF 7386 Isuzu Pick-Up driven by the first defendant on 26 113.rch, 1990. The secon:l defendant is the driver of the said motor vehicle. The plaintiff's further claim interest on damages and costs of the action. The writ arrl the statement of claim were issue:l on 24th l1arch, 1993. The defendants were personally serve:l with the same and there being no notice of intention to defend the action> it was on 31st :tray> 1993 adjudgai that they pay the plaintiffs daJIBges to be assesse:l. This is now a notice of appointment to assess damages. Tb.e defendants were duly servErl with the notice. They> however, did not atterrl the hearing. I heard evidence from the mother of the plaintiffs and from the second. plaintiff. It emerges from their evidence tbat on 23rd ttarch 1990, the plaintiffs were standing beside a highway read at or near Girmery Comer in the City of Blantyre. The motor vehicle in issue left the rca.d and hit both of They became unconscious after the impact and them. they were rushErl to Queen Elizabeth Central Hospital to where they were adID.ittErl. The first plaintiff who is now aga:i 12 years regaine:l consciousness after two days. She was in hospital for two weeks and since then she bas never re.ally recovered. She sometimes behaves like an insane person ar.rl of ten screams at night. Her nose blea:is of ten an::1 her memory of thlngs is bad. She does not remember most thirBs and up to now she still receives treatment. At the time of the accident, she was in standard one. She had suffera:1 head injury. The mErlical report exhibit P1, states that the first plaintiff inJury with "closErl sufferai • She is no longer fit for manual work and concussion 11 the mJuries she sustaine:i are describBJ. as serious. that she will suffer Tb.e report further states head permanent incapacity which is assessed at 15%. 1he second plaintiff who is now aged 16 years> who was admitted to the said hospital for a period of three months an:1 during which time, he -was operated on on several occasions. He had sustaine::i a fracture of the le:J which was in P. O. P. for three months. 1he fracture failed to heal properly with the result that his right foot is deforme::i and he now limps. He cannot nm or play footl::all. He cannot wear shoes and he still feels the pain on the foot. When he walks long distances> his right le:J swells arrl he feels great pain on it. The ma:lical report states that he sustained II open fracture of the right foot" and he went to theatre four times for detriment of the debris. The right foot is deformed. He suffered permanent incapacity which is assessed at 25%. The nature of the injury he sustainB:3. is described as serious. I accept the evidence for the plaintiffs which> is undisputed and illlchallemB:I.. I saw the witness as they testified and there is no doubt whatsoever in my mind that they gave me a truthful accoilllt of what happenB:3. and of what :tas happena:1. 1here is again no doubt whatsoever in my mind, that the injuries which both sustained are considerable and very serious. lfulawona Ngwira suffered head injuries of maximum severity with the consequence that he has almost been raiucBi into a vegetable state. She has never recovere:l. an::i she has become sub-norrral. Her physical arrl mental impairment are unlikely to change for the better. She has chronic nasal haemorrhage, has lost her memory and she of ten screams. As I said after the impact, she had sufferErl 11 closErl head injury with concussion'' . 3:unson Ngwira' s injuries were also substantial. He was opera tErl on his foot four times arrl it has not healErl properly. He now walls with a limp arrl he cannot ran or play footb:ill. He still feels great FBin on that foot arrl when he walks long distances it gets swollen. In rraking an assessment of danages I lBve to take into account the bcrlily injury sustained as well as the pain these undergone and its effect on the health of victims. I must also take mto account items of expense incurrErl and. the pecuniary loss sufferB:l.. I must award these victims sums of money which will , as nearly as possible, put ·them in same position as if they bad not sustaina:i the injuries. Of course pain and suffering endurErl an:1 the future loss of am.eni ty in a personal injuries case are not in the nature of things convertible with legal tender nor is there a rational test by which a judge can calculate what sum The principle of restitutio in is appropriate. intEgrum however compels the use of money as the sole instrument of restorirB the status quo. Al though the aim of the court in awarding damages is to make gocx:1 to the plaintiff so far as money can do it, the loss he has sufferErl, it is impossible to assess loss of for pain and sufferiJB and for damages life by any process of arithmetical amenities of It is never a 1IEtter of :mathematics and calculation. rn IIBilY cases the court has to engage in the art of prophesying. The difficulty inherent in the assessment of damages provides no reason for the court to shirk the task of arriving at an estinate most likely to provide fair and reasonable compensation. :ce.mages for pain and suf f erin:J and amenities are basically conventional deri vErl experience and from awards in comparable cases. for loss of from Lord Horris in West vs. Sbeffird [ 1964JA. C. 326 at p. 346 statEd. the position as follows: • • • money cannot renew a physical frame that has been batterErl arrl shattera:l.. All that judges and courts can do is to award sums which must be rs:JardEd. as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By comun asset awards must be reasonable an:1 must be assessErl with moderation. Furthermore, it is eminently desirable that as far as possible comparable mJuries should be compensate:i by comparable awards. When all this is said it still must be that amounts which are awarde:i are to a considerable extent conventional 11 • look Erl at comparable awards 1n cases with I have brcadly similar injuries to those sustainEtl by Samson I must say at once that Ngwira and tlulawona Ngwira. the pain and suffering undergone by these plaintiffs and severe loss of amenities will suffer justify a They suffered great substantial amount of damages. pain and still continue to suffer it. tlulawona Ngwira has sufferm substantial and serious impairment of her mental faculties and as I said she is almost rrnuced to She has lost her memory arrl has a v03"etable state. chronic nasal haemorrrege. No improvement is expectm. It is also obvious that she Will nee:::l nursing care for the rest of her life. I award her K90, 000. 00 for pain arrl suf f erirB arrl loss of amenities of life. I also award her K50,000.00 for her future care. I turn to Samson Ngwira. He is now a cripple. He too has sufferErl and undergone considerable pain and suffering during the injury, during the operations and even thereafter. He still suffers from pain up to now from the foot and no improvement is expectErl. His loss of amenities is great. He cannot play f ootl::all or ride a bicycle. He cannot run and. he cannot wear shoes. I award him K70,000.00 for pain arrl sufferi.ng" arrl for loss of amenities of life. He has an 11:flY foot which no doubt embarrasses him. award him. K20,000.00 for deformity. I I award also the plaintiffs costs in the action. (\,,\ ~i<\V' ~~o to DmJIY RffiISIRAR