O. E. Phiri v AG (Civil Cause 162 of 1994) [1996] MWHCCiv 24 (16 August 1996)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 162 OF 1994 OSCAR E P~l IR I ................•................. PLAINTIFF THE ATTORNEY GENERAL ....................... ,,, . .... DEF EN DANT ------ AND CORAM ~ . DEPUTY REGISTRAR ~l~~a of Counsel for the Plaintiff Defendant, absent R U L I N G QOTO, DEPUTY REGISTRAR, The task before me in this action. is to assess damages >- 1994, By a writ of summons and a statement of claim issued on 26th the defendant loss the defendant's January, aggravated and punitive damages for pain and suffering and of amenities of were negligence. He also claimed for costs of this action. the plaintiff claimed against result of life as a Service of was by post and 1994 adjudged da mages to be assessed and costs of the action. the writ of summons and the statement of claim there being no defence, it was on 14th February, the defendant do pay special and general that The hearing of the notice of appointment to assess damages was held in the absence of the defendant. He was served with the he aring but neither he nor his for he aring. representative did come - 2 - I heard evidence from the plaintiff . It \-Jas to hi de On 7th May 1992, he was walking that he works for Enterprise Containers a limited liabili ty company. along Chikwawa Roa d towards Sunnyside in the City of Blantyre. He was going t o his place of work to inquire if there was work t hat day in vi e w of the fact that there had bee n civil disturbanc es the day bef ore. He saw a group of people fleeing for their li ves and the pol ice we re chasing them and shooting at them. t oo fled for his 1 i f e and we nt in someone's house at Manase locatio n . The police came there too and banged on the door and ordered ever yone out of the house. When he and others c ame out of the house , the police asked them to ra i se up their ha nds and whilst t hey di d so, the police shot him on the left leg without cause. They s hoot him again on the right leg. When he fa iled to walk beca use of the pain from the gun shot wounds, the po lice hit him wit h the butt of t heir guns. They then lifted him an d threw to Blan t yre police him in station a nd fr om Blantyr e . He was admitted to Queen Elizabeth Central Hospital for two days and his gun shot wounds were dressed. They drove there, to Queen Elizabeth Central Hospi tal t he i r motor vel1icle. int o He from the beatings. He a ls o t old the court th at he felt great pain from the gun He continued to fe el pain shot wo unds and t he said even afte r he got dis c harged and he continued to visi t The bull ets had hospita l t he wounds pierced his legs have he a l ed , he said, he frequently feels numbness and he has dif ficulties in walking. He cannot cycle uphill and he also has di fficulties in ascending steps at his place of work. as an out patient for l1ad come out of i t. Although treatment. le gs and in his Th e aw ar ds of damages loss of ameniti e s ar e convent i onal because the loss which t he co urt seeks in making to comp ensa te has no monetary value. suffering and The court, for pain, ., . . • . - 3 - I. r ' to all litigants should be even-handed assessment for pain, suffering and loss of amenities, has to keep in mind such comparable awards as it can find so that justice instead of meted out In looking at depending on the whims of the assessor of damages. lose awards sight of the facts that they are called upon to assess damages for pain and suffering which the plaintiff has and has had and will always have and the suffering he has undergone. Again the courts must bear in mind that each case has a myriad of circumstances perculiar to itself. the courts must however not in comparable cases, When the courts look at awards in broadly similar cases, they do make adjustments to those awards as are appropria i:e in those the previous awards were made. This follows from the principle that the court must award the litigant today's kwachas. the money since the value of the fal 1 I ight of in I find on Turning to the present case, the uncontroverted evidence of the plaintiff that he suffered great pain and he has He continues undergone great suffering from the gunshot wounds. to suffer up The medical to now albeit the wounds have healed. report indicates that this state of affairs i.e of suffering will prevail for sometime. loss of amenities of his good and useful life is heavly affected as he cannot cycle uphill and he has difficulties inascending steps. His I have looked at awards made I make fits into the spectrum of awards made in broadly similar cases so in that the award this High Court. In Fannie Lisuntha v Attorney General Civil Cause No. 458 of 1994 K70,000.00 was awarded for pain, suffering in both and In C Kagona v Attorney General Civil Cause No. 918 of legs. loss of I 1995, amenities of life following a gunshot on the chest which left big and ugly scars. loss of amenities following from being shot twice awarded K60,000.00 suffering and for pain, - · I think in the - 4 spectrum of awards made cases. I award it to the plaintiff with costs of the action. instant case K60,000.00 fits the in broadly similar into in the Higt1 court Made in Chambers this 16th day of August 1996 at Blantyre. / \~~~i~ <►~ DEPUTY REGISTRAR <~.