Elephant v Eastern Produce Malawi Ltd. (Personal Injury 514 of 2016) [2018] MWHC 705 (11 May 2018)

:*IG C O U R JU D IC IA R Y IN T H E H IG H C O U R T OF M A L A W I P R IN C IP A L R E G IST R Y P E R S O N A L IN JU R Y C A U SE N O . 5 1 4 O F 2 0 1 6 B E T W E E N : P E T E R E L E P H A N T ......................................................................................................................................... P L A IN T IF F A N D E A S T E R N P R O D U C E M A L A W I L IM IT E D ................................................................................. D E F E N D A N T CORAM: K. B A N D A , A S S IS T A N T R E G IS T R A R Mr. Chibwe, Counsel for the plaintiff Defendant absent /n o t represented Mr. Chitsulo, Court Clerk I n t r o d u c t i o n O R D E R O N A S S E S S M E N T This is an order on assessment of damages had on 23rd March,2017 resulting from a default judgment dated 5th October,2016. The defendants were duly served as evidenced by the affidavit of service sworn by Mr. Darlington Misomali, a process server in the firm of Messrs. Hilson and Company, lawyers for the plaintiff herein but did not avail themselves at the hearing. As such the whole evidence was uncontested. The plaintiff claim is for damages for pain and suffering and loss of amenities of life and disfigurement. P r e l i m i n a r y o b s e r v a t i o n I must however indicate that suits of this nature are double aged. On one side they fall under the Workers Compensation Act where the workers compensation commissioner has powers to determine on rights of the parties and even an award payable. See. ss. 29 and 42 of the W orkers Compensation Act. This order is enforceable through the magistracy. See. s. 4 3 . That however does not restrict the plaintiff if not satisfied with the adequacy of the award in regard to the injury now subject m atter of these proceedings, to pursue the m atter further in court by way of civil proceedings. By s. 51 of the said Act, he or she is allowed to seek further compensation with the court provided the award made by Commissioner should be brought to the attention of the court or vice versa so as to be taken into consideration when making the subsequent award. In the case herein, the plaintiff who owes this court such a duty did not do as required. He left the court to speculate and in the process creating a potential chaos as to what he should get if it transpires that the award herein equals what was already paid. I will revert to this puzzle later in the ruling. B r i e f f a c t s Briefly the story is that the plaintiff was at the time of the incident an employee(guard) of the defendants at Makwasa Estate in Thyolo. That on 20th February,2014 in the course of employment as a night duty guard and on instructions from the defendant, patrolling the defendants forest at Makwasa Estate, was attacked by thieves intending to steal from the forestry and was injured in the process. E v i d e n c e In evidence the plaintiff who was the sole witness adopted his witness statement and its accompanying exhibits in their entirety. According to the witness statem ent and medical report, it averred that the plaintiff suffered multiple injuries namely: 15cm right face laceration down to the scar, 10cm laceration on the back of the scalp to the depth of the skull, 8 cm laceration on the back of the scalp to the depth of the skull periostium, and on the left hand, nearly complete amputation at the end of the 5th digit. Near complete amputation at the discal 4th digit and near complete transaction of the 3rd digit with complete devascularisation, severed flexor tendon, complete transverse fracture at the bone. Large laceration to the thumb and lacerations to the posterior hand that severed the 2nd and 3rd digit extensor tendons. As to the right hand, he had one large laceration 8cm to the palm of the hand and four lacerations on the back of the hand. Fractures in multiple places of the 2nd, 3rd, 4th and 5th digits. Equally he had severely injured and severed tendons of the 2nd, 3rd, 4th and 5th tendons. The medical report indicated that all were repared. That said the plaintiff also gave his oral testimony to the court under oath as to his injuries and then went on to demonstrate to the court the extent of the same. From the observations of the court, it was noted that the plaintiff had all three fingures on his left hand, starting from the middle to the index cut. Further he had deep scars of sutures on the back extending towards the thumb. Again on the right hand, at the back of the palm, they were marked lacerations and two huge scars indicating sutures. These all originate from the index fingure, going up towards the wrist. Further just on the wrist there is also a minor scar telling of the sutures. The skin on the upper part of the back of the palm is darkened (skin patchment) due to the injuries. That said, on the right left exterior part of the eye, there is a deep cut extending to the ear with a scar but a bit faint. These observations are backed by a medical report also tendered in evidence during the proceedings. A p p l i c a b l e p r i n c i p l e s o f l a w o n a s s e s s m e n t o f d a m a g e s The plaintiff as alluded earlier claims damages for pain and suffering and loss of amenities of life and disfigurement. The fundamental principle on assessment of damages remains as to put the victim in the position he would have been had the wrong not been done to him. See. Livingstone v Rawyards Coal Co. (1880] 5 App. Cas. 25 at 3 per Lord Blackburn J. It is called restitutio integrum. In essence compensation for damages is not meant to be punitive. It must be fair to both sides and it must give compensation to the plaintiff, but must not pour out largesse from the horn of plenty at the defendants expense. See. Pitt v Economic Insurance Company Ltd (3) SA 284(D] 287E-.,per Holmes J. The test should be what a particular society would deem fair. Lord Devlin, in West v Shephard[1964] A. C.326 at 357, said this would be such as would allow a wrong doer "to hold up his head among his neighbours and say with their approval that he has done the fair thing" Again the awards must show a measure of some level of internal consistency within a particular society. It is not easy to maintain consistency and achieve fairness to both the victim and the defendant unless the court awards damages on the basis of comparable awards in cases of similar nature. In Wright v British Railway Board (1938) AC.1173, 1177, Lord Diplock had it this way: “Non-economic loss...is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigation should be even-handed instead of depending on idiosyncrasies of the assessor , whether judge or jury, the figure must be basically a conventional figure derived from experience and from awards in comparable cases." In West v Sheppard[1964] AC 326 Lord Morris(as he then) also stated that: "Money cannot renew a physical frame that has been battered and shattered. All judges and courts can do is to award a sum which must be regarded as giving reasonable compensation." That said, maintenance of the value of money is a factor to be considered to ensure that the wrongdoer does not gain an advantage over the victim. Mwaungulu J (as he then was) in George Sakonda v S R Nicholas, Civil Appeal Number 67 of 2013(HC) (PR) (unrep) commented as follows: "Moreover, conventional awards must factor inflation and value of money changes. Awards made at a higher value of the money and low inflation cannot compare to similar awards at lower value of money and high inflation. Victims stand to lose; wrongdoers stand to gain. Courts must therefore regard money value and inflation." Disposal Reverting to the m atter herein, the plaintiff claimed damages for pain and suffering and loss of amenities of life. In regard to pain and suffering, and that is for purpose of damages, pain encompasses any pain caused by medical treatm ent or surgical operation carried out due to the injury caused by the defendant whilst suffering may include fright at the time of incident, fear of future incapacity as to health or indeed the ability to make a living. It also includes humiliation, sadness and embarrassment caused by disfigurement. See. Me. GREGOR ON DAMAGES, at. 1289 paragraphs. 35-213. As to loss of amenities of life, the same concentrates on the curtailment of the plaintiffs enjoyment of life by his inability to pursue the activities he pursued before the injury. See. Manley v. Rugby Portland Cement Co.(1951)C. A. per Brickett L. J reported in Kemp and Kemp, The Quantum of damages, Vol .1 (2nd Ed)., 1961,p.624.2 And see also Mwaungulu J in Mtika v US Chagomerana t/a Trans UsherfZebra Transport)[1997] MLR 123,126. With respect to pain the plaintiff gave evidence on how he was attacked and tendered a medical report in support of the same. He equally explained that he was admitted for one month during which he underwent painful medical surgeries to repare the damaged limbs namely both hands and the skull. It is trite that pain immediately and after the incident must be taken in consideration in arriving at a proper award when assessing damages. And the situation herein is no exception. It is clear from the evidence that there was suffering at the time of the incident and it continues to do so as it is psychological. Unlike pain which may cease at a later date, suffering affects a person for long. In the words of the doctor, the victim and hence the plaintiff herein was extensively traumatized. This implies being emotionally affected in a negative way. That said, as things stand now, the plaintiff cannot perform any functions as he used to. His enjoyment has been curtailed as other things he could do in life he cannot now do or even work, the long and short of it is that he has been rendered in incapable due to the same injuries. Again the deformities or disfigurement that the plaintiff has attained has elased all the beauty both in the facial, and hands areas of his body. They are mark to constantly remind him of the pain and trauma he has undergone. Essentially therefore the award under this head is normally factored in the pain and suffering as it is psychological. In his submissions counsel cited a number of authorities as comparable cases in terms of the awards made. I however notice that in most of the cited authorities the facts are far much off point with the facts in the case herein and therefore irrelevant. However one case has facts coming closer and that is of Alex Maunde v Hua Feng Co. Ltd, Civil Cause No.194 of 2008(unrep], where the plaintiff a machine operator was awarded MK1,250,000.00 on 18th April,2012 as damages for pain and suffering and loss of amenities of amenities of life. In fact this was for the three crushed fingures that were later amputated and a dislocation of the shoulder. On comparable basis however this seem to be a less serious case than the one before me. This effectively signals that the award I must make in the m atter before me should take the upward spiral for two reasons. Firstly because the award I will make will be once and for all and hence will have to take care of the current and any situation that may arise in the future. Secondly I must consider that the award in the above cited case was made in 2012, almost 6 years ago and over the period there has been changes in value of the currency such that the same amount as in 2012 would buy more cannot as of now. In short I take on board issues of inflation for consideration. Counsel proposed a total sum of MK 15,000,000.00 as damages for pain and suffering and loss of amenities of life and disfigurement. I find this to be overly unrealistic. I therefore having revisited several cases which I must mention, the majority were decided by my colleagues who we share jurisdiction and therefore not binding on me, proceed to award the plaintiff the sum of MK 4,500,000.00 for pain and suffering and loss of amenities of life and MK800,000.00 for disfigurement. In total the plaintiff is awarded the total sum of M K 5 , 3 0 0 , 0 0 0 . 0 0 . for all the items prayed for in his pleadings. Reverting to the earlier puzzle, I clarify that this is in addition to the sum awarded by the workers compensation commissioner if any and if not it is to be taken into consideration when the same comes before him for assessment. 5