Phiri v Chembezi and Prime Insurance Company Limited (Personal Injury Cause 430 of 2016) [2018] MWHC 1281 (1 February 2018)

--,( t -- ,. H r.r "JRT i • 0 ~~ l"' :-: y j - - ...,.,.__ - - - - - -.. t IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 430 OF 2016 BETWEEN NOEL PH IRI .................................................................................................... PLAINTIFF AND MR. MAURICE CHEMBEZI ................................................................... 15r DEFENDANT PRIME INSURANCE COMPANY LIMITED ............ ............................... 2 ND DEFENDANT CORAM HER HONOUR MRS. BODOLE, ASSISTANT REGISTRAR AND Kaluwa, of Counsel for the Plaintiff Counsel for the Defendants, Absent Ms. Kazembe, Court Clerk ORDER ON ASSESSMENT OF DAMAGES The plaintiff brought proceedings against the defendants clai ming damages f or pain and suffering, loss of ame nities of life, disfigurement, the su m of K3,000.00 and Kl0,000.00 as costs for obtaining the Pol ice and medical reports respectively, and costs of the action . The plaintiff obtained default judgment and t he matter has now come fo r assessment of damages. The Evidence The evidence before this court is that on 6th December, 2015 the plaintiff was coming from his home and going to a friend's house. He was walking on the dirty verge of the road. Motor vehicle registration number KA 3669 Toyota Cresta saloon hit him when he reached a place called Mbwelera at Chemusa in Blantyre. As a result of the accident the plaintiff sustained injuries. The plaintiff's Health Passport which is exhibit P.2 shows the treatment he received on 20th February, 2016 which shows that he had isolated left fibula and he was given some medication and was referred for physiotherapy. In his oral testimony the plaintiff testified that his left leg's bone and knee were broken. The plaintiff's statement of claim shows that the plaintiff sustained fracture of the left tibia and fibula, injury to ligament on the left knee, bruises on the face, bruises on the back, left hand, right hand, and all over the body. The Police Report which is exhibit P.1 and addressed to Noel Phiri shows that Noel Chaona and not Noel Phiri sustained fracture of the left leg. Applicable Law The burden of proof lies upon the party who asserts the affirmative of the issue - Phips on Evidence {16th edition) 127. As such the plaintiff has a burden of proving the injuries he sustained for the court to make a proper assessment of damages. In Msachi v Attorney General [1991] 14 MLR 287 it was held that the standard of proof in civil cases is on a balance of probabilities. Analysis of Facts and Applicable Law The plaintiff's statement of claim upon which the default judgment is based shows that he sustained a fracture of the left tibia and fibula, injury to ligament on the left knee, bruises on the face, back, left hand, right hand, and all over the body. His oral testimony shows that he sustained a fracture of the left leg and knee. His Health Passport is not very clear as to what injuries he sustained except that he had isolated left fibula and was given some medication and referred for physiotherapy. This Health Passport is dated 20th February, 2016. Th e plaintiff's test imony on his the injuries he sustained is so mixed up that it is diffi cult for me to find what kind of injuries he sustained. The plaintiff's name is Noel Phiri. The Police report shows that the person wh o sustained t he fracture of the leg is Noel Chaona and not Noel Ph iri. Th is makes it the more confusing as to what injuries the plaintiff sustained as a re sult of t he accident. All in all, I find th at the evidence on the injuries sustained by the pla intiff is so contradicto ry that it cannot be relied on by the plaintiff to prove his inj uries fo r t he cou rt to make a proper assessment of damages. The plaintiff has failed, on a ba lance of probabilities, to prove to this court the injuries he sustained . The assessment proceedings are, therefore, dism issed. Pro nounced in cou rt this 1st day of February, 2018 at Blantyre. E. BODOLE (MRS) ASSISTANT REGISTRAR 3