Nyirenda and Another v Phiri and Another (Civil Cause 330 of 2019) [2023] MWHCCiv 23 (31 March 2023)

WYWNESS NYIRENDA,.. cree cee reeees TIONGE HONDE,L.. cee cae eee ene cae en tee nee e EVANCE PHIRI... cc creese nr eeeena conan CIVIL CAUSE NUMBER 330 OF 2019 BETWEEN see eaeaneseet) CLAIMANT peeenee eee ee 2® CLAIMANT AND des cta ren seteeesveevreeseersecsreseemmmd) DEFENDANT PRIME INSURANCE COMPANY LIMITED... ccccse severe cee eee sue eve cne cee eneaes 2° DEFENDANT CORAM: KAPASWICHE Kambalame Chapo Matope : ASSISTANT REGISTRAR (AR) : Counsel for the Claimant : For the Defence : Clerk { Official Interpreter ORDER ON ASSESSMENT OF DAMAGES commenced on the igh day of ‘April 2019. on noth June 2020, a summary Judgment was entered on This is a 2 claim for damages for pain and sufferings loss of armienities of ie; disfigurement loss of 4 earning capacity cost: of, police an medical report ‘and ‘costs, of the: action. The matter “Was. _ all thé ‘aims against the Defendant and the matter w was referred fo r ‘assesment of damages. On: ay assesment of damages: only the secorid Defendant attended hearing as the first Defendant did not. attend and no reasons were given for his fallure to attend the assesment hearing. This is my determination on the damages payable in the present case. THE EVIDENCE The first Claimant was the first witness in the present case, She adopted her witness statement. Her evidence was that on or around 12*" April 2019 at around 19:00 hours she was a pedestrian from the direction of Rumphi boma going towards Bolero with friends. Upon arrival at Kawajawaja maize mil, a motor cycle at excessive speed driven by the first Claimant fost the road hitting her and other three pedestrians, As a result of the accident, she sustained fracture of the left tibia and fibula, leg was shortened by 2cm, she was unable to walk properly, she had pains on the rib side, muitiple abrasions and scars on the affected parts. She was taken to Rumphi District Hospital where she was hospitalized for one week and was thereafter treated as an outpatient for 8 months. Pwi had her leg cast in POP three times. The effects of the injuries that she suffered are that she still experiences pain on her jeg, she still walk on serious limp, she can no longer bend or squat and she can no longer walk for a long distance without feeling pain. It was the evidence of the first Claimant that she used to travel for business of selling bananas and she was able to make between MK15,000.00 to MK20,000.00 per day and with her condition she can no longer continue doing the business in question. in cross-examinatlon; she stated that she was treated at Rumphi hospital and she confirmed that the medical report does not have a stamp for the hospital from which it was authored, She further confirmed that she has not-brought evidence for the Income that she claimed to be making in her business prior to the accident. a thes accident, Pw2 stated that she still ‘experiences pain on. her neck and that she can no longer arry Se and she was making MKio, 000. 60 to MKB, 000: 60 Pwr was $ the second Claimant: The narration of the circumstarices ‘surrounding the accident was the | same a as s explained by PW1. The injuries: suffered by, Pw, were ‘moderate head injury painful neck; dislocated left shoulder, multiple abrasions and scars on the affected arts. ‘shev was hospitalized {for a . three days at Rumphi District Hospital and treated as an n outpatient for a day, Asa corisequere of - “: heavy objects on her head. she used to ‘do business of selling aiibcades cattying ‘ther on. 1 fied er day Hi no longer ¢ does the business as > she A ~canno longer car ry ‘objects ¢ on 4 her head, Her permanent incapacity was assessed at 34%. For the second Defendant, no witnesses were paraded, Defence Counsel addressed the Court to the effect that the liability of the second Defendant is limited to MK5,000,000,00 and this was confirmed by Counsel for the Claimants. Defence Counsel undertook to file submissions within 14 days but the said submissions were never submitted, THE LAW ON DAMAGES The faw generally provides that a person who suffers bodily injuries or losses 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 than the Plaintiff's actual loss. The principle was laid down in numerous case authorities more particularly by ‘Cord Blackburn in the case of Livingstone v. Rawyards Coal Company (1880) 4 AC 25 in the foliowing 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 how 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 0 darhages for the Plaintit. ‘suffering’ relates to the rental elements of anxiety, fright, fear of future disability, humiliation, embarrassrnent, sickness and the like as was held in City of Biantyre v. Sagawa [1993] 16 (1) MLR 67 (SCA). 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 DISFIGUREMENT Darnages 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) 4 MLR 297 (SCA). DAMAGES OF LOSS OF EARNINGS AND EARNING CAPACITY Loss of earnings is the total loss or actual reduction in the income of the Claimant as,a result of the injury suffered, while loss of earning capacity Is is | the likely © or r pr ospective loss © or reduction in the DETTE CEPR Page 4 capacity, courts Lise ‘pultiplicand/multipier formula. Tembo AR, adapting. ‘from: MeGreg it income of the Claimant as a a result of the injury suffered. See Kambwiri v Attorney General [991] 14 MLR 151 (HC). In injuries “involving amputation and crushing of fingers, the hand: will have been oe rendered. of very “tittle use and suctt grip as remains will be exceedingly weak: See" ‘Barrig, Pi Compensation for Personal injuries, Edat pages 318 ~ 319. TO calculate damages for loss of eeaining ne Damages, ast ed, al page 905 states as follows in Manda v Malawi Social Action Fund civil cause “No. 756 of 2003 (utrep) “fn calculating the loss-of earning capacity the courts have evolved a certain method. The amount of loss of earning is calculated by taking the figure of the plaintiff's present annual earnings less the amount, if any, which he can now earn annually, and multiplying this figure by a figure which, while based upon the number of years during which the loss of earning. power will last, is discounted so as to allow for the fact that a lump sum will be given now instead of periodic payrnents over years, The latter figure has come to be known as the “multiplier and the former figure, the multiplicand... Further adjustment however has to be made to the multiplicand and multiplier on account of other factors like inflation the so called contingencies of life and taxation.” Multiplicand The multiplicand represents the Claimant’s actual or expected loss of annual earnings. The starting point in coming up witha multiplicand is what the plaintiff would have been earning at the date of trial or assessment, not what he was earning at the time of the accident. Tembo AR observes as follows in Manda v Malawi Social Action Fund Civil Cause No. 756 of 2003 (unrep): “The starting point for calculating the multiplicand has for long been the amount plaintiff earned before his injury ... the starting point is what the plaintiff would have been earning at the date of trial, or assessment herein if not for the injury. From that is discounted whatever the plaintiff is capable to earn in the future. If he cannot earn anything nothing falls to be deducted. For the multiplier the starting point in calculating it is the number of-years that it is anticipated the plaintiff's disability will last. That calculation falls to be made from the date of trial and requires medical testimony.” Ari amputated finger and crushed finger affects one’s grip and, therefore, impairs one’s ability to do physical jobs, In the case of Manda v Malawi Social Action Fund, Civil Cause No. 756 of 2003 (unrep) 4 . Finger hasn nat proved a and 50 s the prognosis is not good. “Alieady forsy years the plaintiff - has been without his earning power.” Multiplier The multiplier is the difference between the average life expectancy in Malawi and the age of the claimant, The INDEPTH model estimate of the life table for males and females in Malawi as at 2008, according to Population and Housing Census 2008, Analytical Report Vol. 2 (Mortality) published by National Statistical Office, August 2010, puts exact life expectancies of a males and females at different ages (see Table below), Life expectancy for a male aged 25 is 34.4, as below, Age Male Female oo 48.3 51.4 1 51.9 55-1 5 51.1 54.4 410 47.2 50.4 15 42.8 45.9 20 38.4 41.6 25 34.4 38.0 30 31.2 35.4 35 28.4 33.2 40 25.8 30.6 45 23.4 27.6 50 214 24.5 55 18.5 21.1 60 . 15.6 17.4 “Alternatively, in ‘the recent case 2 of Lucy Chitsotso ‘chatayika v Eminianuel | Kaluidzu and United S General Insurance Co. Ltd, Civil Cause No. 146 of 2016 (unrep); the court but life expectancy tr i Malawi at 61.2 years. And the recent World Health Organization life tables for Malawi put life expectancy at 61 for males and 67 for females, DETERMINATION 7 CLAIMANT DAMAGES FOR PAIN AND SUFFERING; LOSS OF AMENITIES OF LIFE AND DISFIGUREMENT The injuries suffered by the first Claimant were as follows; fracture of the left tibia and fibula, leg shortening by 2em, pains on the rib side, multiple abrasions and scars on the affected parts. She was treated at Rumphi District Hospital where she was hospitalized for one week and was thereafter treatad as an outpatient for 8 months. Pwt had her teg cast in POP three times. The effects of the injuries that she suffered are that she still experiences pain on her leg, she still walks on serious imp, she can no:longer bend or squat and she can no longer walk for a long distance without feeling pain. The first Claimant prayed for an award of a total sum of MK25,000,000.00 under this head and the amount was broken down as follows; MK10,000,000,00 as damages for pain and suffering; MK5,000,000.00 as damages for loss of amenities of life and MK10,000,000.00 for disfigurement. The first Claimant cited four cases in support of her prayer under this head. The first case cited was that of Thomson Chisenga v. Allie Mustapha and others Personal Injury Cause No. 907 of 2019 (unrep) where the Claimant sustained a fracture of the right leg, bruises on both thighs and arms and severe head injuries. His leg was shortened, walks with a limp and he used crutches for a year. He was awarded MK7,500, 900.00 for pain and suffering, loss of amenities of life and disfigurement on the 24! May 2021. The second case was the case of Nyalai Davison v. John Kapalamula and Prime Insurance Company Limited; Civil Cause No. 1216 of 2015 (unrep) in which the Claimant sustained a oe “fractured distal tibia ¢ on the left leg, deep cut wourid on nthe left leg and serious s defor mity of the @ Oe, 7 He was: awarded Mik5,300, 000. 00 for pain and: suffering and loss of amenities of life and . (unrep) wher e ‘the Claimant sustained open fracture of tibia, cut wound on the upper eye and some : MK, 200, 000.00 for dsigurement: on agit May 3020. oly : . the third case was that’ of Tryson Gondwe' Vv. Donald Gondwe and another civil cause No. 0.765 of 2018 abrasions, He’ was s hospitalized at Rumphi District hospital and Mzuzu Central Hospital where he had his lag cast in plaster of paris. He ‘could, no’ loriger walk: without ‘the aid ‘of clutches and he: was o a awarded MK5,500, 000 as damages for pain and suffering and loss of amenities of life and MK700,000.00 for disfigurement on 24 July 2019. The last case was that of Alefa Mkwate v. Kunje Suwedi and Prime Insurance Company Limited [2019] MWHC 120 where the Claimant sustained fracture of tibia and fibula on the right leg leading to deformed and shortened leg, head injuries, bruises and multiple cuts on the left leg. The Claimant was failing to do normal household chores and had difficulties in walking and was awarded MK6,000,000.00 as damages for pain and suffering; loss of amenities of life and disfigurement. This Court has taken proper consideration of the cases cited by the Claimant herein in support of her Claim for s sum of MK25,000,000.00 under this head. The cases cited do not support the huge claim that the Claimant has made herein as none of the cases made an award reaching MKB, 000,000.00, | have also noted that in most of the cases cited by the Claimant; the injuries suffered by the Claimants in those cases were severe as compared to the injuries suffered by the Claimant herein. In my considered view that a total sum of MK4,000,000.00 will reasonably compensate the first Claimant on the injuries suffered for pain and suffering; joss of amenities of life and disfigurement. C DAMAGES FOR LOSS OF EARNINGS AND EARNING CAPACITY The Claimant calculated damages payable under this head at MK82,882,800.00. This amount was arrived at by using the multiplier and multipticand theory. it is in evidence that the Claimant was doing a business of selling bananas at Rurmphi Boma and she used to make around MK15,000.00 to MK20,000.00 per day. The medical report submitted by the Claimant herself indicated that she will be able to perform her pr evious job and on that basis, it is not reasonable to use the calculations made by the Claimant as she can still proceed with her previous business. The loss to be compensated for would reasonably be the loss incurred for the time she was admitted In hospital and the time that she spent attending hospital as as an n outpatient, | have also to mention that the amounts stated byt! the - Claimant do not indicate as to whether thove were total daily sales or dally profits: and additional there i is Hio proof ofthe amounts stated considering the nature of the business that the Claimant was: engaged in. considering the circumstahces of the present case} ' will award a “nominal sum 1 of - Mik5o0, 000.00 under this head. The fist Claimant is further wii sum of Mio, 000.00 as cost for police and medical report / NP CLAUMIANT - DAMAGES FOR PAIN AND SUFFERING; LOSS OF AMENITIES OF LIFE AND DISFIGUREMENT The injuries suffered by PW2 were moderate head injury; dislocated left shoulder, multiple abrasions and scars on the affected parts, She was hospitalized for three days at Rumphi District Hospital and treated as an outpatient for a day. As a consequence of the accident, PWa2 stated that she stl experiences pain on her neck and that she can no longer carry heavy objects on her head. The prayer from the second Claimant was that she be awarded a sum. of MK17,000,000.00 being MK6,000,000,00 as damages for pain and suffering; MIKG,000,000.00 for loss of amenities of life and Mik5,000,000,00 for disfigurement. The second Claimant cited five cases in support of her claims. The first case was Taona Violet Msiska y. Madalitso Banda and Consolidated Mining Industries, Civil Cause No. 178 of 2016 (unrep) where the Claimant lost an earlobe, bled profusely, sustained deep cuts on her jeg that exposed the bone and some nerves cut, hearing impaired and could no Jonger do farming. She was awarded MK5,800,000.00 for pain and suffering and for loss of amenities of life and disfigurement on 8" June 2018. In Dyson v. Nico General Insurance Co Ltd Personal Injury Cause No. 278 of 2013 (unrep) the Claimant suffered a deep cut wound on forehead, had multiple body bruises, severe headache and painful neck. He had difficulties in hearing; he could not sleep or lie on left side and was unable to do sports or gardening. He had vulgarly scarred forehead and knees. His permanent incapacity was assessed at 15 percent, He was awarded MK3,500,000,00 for pain and suffering and loss of amenities of life and MK1,000,000.00 for disfigurement on 6 January 2014, The case of Kayange v. Chita One Investment and another Personal injury Cause No, 278 of 2013 (unrep) was also cited. in that case, the Claimant sustained head Injuries, multipte injuries and partial blindness to left eye. He was awarded MK4,500,000.00 for pain and suffering and loss of amenities of life on 9! January 2014. in Patrick Chibwana v AirCargo Limited and Nico General insurance oe on the face, swollen head, deep biuises on ‘the hard, swollen hand, traumatic neck pains, ‘traumatic ot This ¢ Court has considered the Injuries: suffered by the: second Claimant herein as seen from, hi “S company Limited, Personal Injury Cause Number 492 of 1013 (urirep) the cl aimant SUS red b | pain on the knee, tmilltiple deep cuits in the head and bruises on the face, back and both knees. The . om : Claimant was awarded MiK3,000, 000. 00 for pain ‘and suffering, My, 000, 006. 00 >for loss of amenities. i of life and MK, 000, 000. 00 30 for 2 aigurement on jath Apri 2021 er “evidence and the medical as well as ‘the police reports, t have also appreciated the injuries suffered. We by the various Claimants | in the in the various cited precedénts, Additionally, the Court was able to : appreciate the current status of the Claimants during the hearing of the present matter. | must state that the injuries suffered by the first Clalmant were more serious compared to the injuries suffered by the second Claimant. In the circumstances of the present case, this Court proceeds to award a sum of MK3,5000,000,00 as damages for pain and suffering, loss of amenities of life and disfigurement. DAMAGES FOR LOSS OF EARNINGS AND EARNING CAPACITY This Court proceeds to award a nominal sum of MK500,000.00 on this head on the same basis as discussed with respect to the first Claimant. The second Claimant is further awarded a sum of Mk1o,000.00 for the cost of police and medical report. FINDING Having appreciated the circumstances of the present case; this Court has made the following awards; For the 1% Claimant ‘(a). MK4,000,000.00 as damages as damages for pain and suffering, loss of amenities of life | and disfigurement. (b). MK500,000,00 as damages for loss of earnings and loss of earning capacity (c). MK10, 000.00 being special damages for obtaining a police and medical report J For the an! Claimant - ©) MK3,500, 000. 002 as s damages for. pain a and suffering loss of amenities ~ disfigurement. . en ent Be : -@) MK500, 000. 00 as s damages for loss of earnings and earning capacity 7 OO: Mito, 000, 0 as cost tof police and riedical report, oe The Claimants a are ¢ further awarded is oft is act rt ) fe sreed by the par be assessed by the Court, MADE IN CHAMBERS THIS 31** DAY OF MARCH 2023 ANTHONY PROULIZANI KAPASWICHE ASSISTANT REGISTRAR en 0s SI PS OT z Sen ane 11