Malupiya v Naming'omba Tea Estates (Civil Cause 276 of 1993) [1993] MWHCCiv 53 (29 October 1993)

'----'" IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 276 OF 1993 BETWEEN: SAMUEL MALUPIYA PLAINTIFF and NAMING' OMBA TEA ESTATE DEFENDANT Coram: D F MWAUNGULU, REGISTRAR Kasambala, Counsel for the Plaintiff Defendant, Absent and unrepresented ORDER The assessment of damages in this action emanates from the defendant's an episode of 30th April 1992, when servant, Mr. Ly ton, while driving a Massey Ferguson Tractor, registration number BD 4254, run over both legs of the plaintiff. The defendant was the plaintiff's employer. The injuries were sustained when the plaintiff was in the course of employment. The plaintiff took out this action on 10th March 1993, claiming general damages and special damages amounting to K60.00. There was no The plaintiff obtained notice of intention to defend. an interlocutory judgment on the 7th May 1993. Damages had to be assessed. The assessment of damages was in the first place, supposed to be heard on the 10th of June there was an adjournment to 5th 1993. October 1993. I heard evidence on the 5th October 993, when I could have disposed of the case but for counsel's failure to prepare schedules of loss of earnings. I now proceed to give the order. On this date, run over by the plaintiff was When the defendant's tractor, he had compound fractures to the right leg. He was rushed to the hospital. To facilitate joining of the bones, metal pins were inserted in the bones. He was in hospital for three and half months. When he was discharged, he walked on clutches for a considerable time. The effect of the injuries is that the right leg gas been shortened by 6 centimetres. The injuries have left a 2 / . . . . . - - situation which in medical terms is called genu vargum. That is to say the two legs bend outwardly below the knees. The injuries have affected the plaintiff's gait. He walks very slowly and with extreme difficulty. He complains that he experiences a lot of pain. He cannot carry heavy loads. He cannot walk for long distances. The medical report which has been tendered intimates that he cannot any longer be able to perform the duties of a labourer·. The incapacity has been worked out at 6 5%. He is still in the employment of the defendant. He, however, only sweeps. He does not do the same job he was doing before the accident. He was a tea p l ucker. He has now been transferred to do general cleanin g and sweeping. This 0has affected his earnings. When he was a tea plucker he was earning K16.00 per week. After deduction of tax he was earning KlS.40 a week. His salary has been reduced to K32. 00 a month. Net of tax he earns K31. 00 a month. in death, the courts aim at awarding When awarding damages for personal injuries that have not the resulted plaintiff a fair compensation for the circumstances in which the plaintiff has gone through and is put into as a result of the injuries sustained. The courts have in an imperfect way achieved this by awarding for the usual heads of damages. These heads of damages are not exhaustive. They, however, reflect what courts regard as matters injured plaintiffs must be Courts usually award for pain and compensated for. suffering and loss of ameneties. These are non-pecuniary losses in contrast to pecuniary losses which are losses of a monetary nature consequent upon the injury to the plaintiff. for which awards of looking at Non-pecuniary damages are arrived at by comparable these matters. This is because the sort of matters, namely, pain and suffering and loss of amenities, are incapable of being quantified in monetary terms. For example, given the different perception and capacity to endure pain, how you award for pain and suffering. tribunals dealing with the plaintiff went In this particular case, through considerable pain. The injuries were very serious. He was in hospital for three and half months. Apart from the this pain, one has plaintiff went through. Suffering includes the physical the injuries as well as the psychological effect of suffering caused by the effect of the injuries. The effect of these injuries is that the plaintiff will not be able to enjoy the pursuits of leisure and generally the pursuits pleasantiness of life. He will not be able the suffering to consider 3/ . . . . . - - to visit the places he used to in the same mann er as when The handicap reduc es hi s walking his body was whole. e rr ands and his pursuit for sport . I woul d als o add that he wil l feel nolstagic that he will not b e able to pluck tea ag a in . For indeed, failure to pursu e o r work a n d tr a de is indeed an item that should bew awarded in lo ss of amenities. to the p la intiff for pain and suffering and los s of amenities, K2 4,000. I would award, the ref o r e, For th e pecuniary losses, it is, in evid ence that there has actually been a reduction in e a rnings. The reduction ha s been caused by loss of the accident. e ar nings is K31.00 per month or K3 72.00 per an num. The p la intiff was accident. Unf ortunat e ly i n the pleadings the loss of ear nings from the time of the accident to the time of ju dgmen t were not is not c la imed as sp ec ial damage s . co n sequential. It has been held in Malawi , tha t a normal wor kin g life is up to 55 years of age. On the basis of thi s information the correct award for l oss o f earning usi ng the multiplier/multiplicand approac h is K7,068. This, ho we v er , Th e net 20 at time the th e of The re i s a c laim for special dam a ges of K6 0 . 0 0. These wer e not proved. The plaintiff la i d no ev i denc e on them. I t here f ore , aw a rd the ~~-ti f f the sum of K 3 1 , o 6 8 . Mad e in Ch a mbe r s this Jl\ 1 day of October 199 .3. c--w- D F Mw a un REGISTRAR OF ( COURT