Magwede v Manyopo and Nyamende Events and Transport Services (Personal Injury 809 of 2016) [2018] MWHC 1284 (3 April 2018)

.. REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY ~ ' . PERSONAL INJURY CASE NO. 809 OF 2016 BETWEEN TIMVANE MAG WEDE ................. .. .. '. T.':: ...... . .... . .. . . .... . .. .. .. . ..... . .. .......... ...... ... PLAINTIFF AND CHARLES MANYOPO .. .... .. ... . ........ ...... .... .... .. . ............. . ... .. . .... ... ..... .. ... 1 sr DEFENDANT NY AMENDE EVENTS & TRANSPORT SERVICES ...... ..... . ........ .. ......... ..... 2No DEFENDANT Coram: WYSON CHAMDIMBA NKHATA (ASSISTANT REGISTRAR) Mr. Masiku- of Counsel for the plaintiff Mrs. Mkandawire- Court _Clerk and Official Interpreter ORDER ON ASSESSMENT OF DAMAGES The plaintiffs in this matter took out a writ of summons dated 3rd of November 2016 against the defendants claiming damages for pain and suffering, loss of amenities of life, damages for loss of business properties valued at KS00,000.00 and costs of the action. This is the court's order on assessment of damages pursuant to a default judgment on liability entered in favour of the plaintiff on the 13th of June 2017. The issue of the Defendant's liability having been settled already by the said __ judgment, the duty placed upon this _court was to determine the reasonable quantum of damages that would. adequately compensate the .. Plaintiffs for the losses and damages herein. I must state that the ,-a111ehtie "Timv.afie1Magwede :;v::Charles Mafiyopo and' Nyamende Events & Jlransport Services Civil Cause No. 8Q9 of · .. "J;,:;;-, 1 t Page 1 defendants did not avail themselves for the hearing pn assessment of damages albeit having been served as shown in the sworn statement of service by post. In her statement of claim, the plaintiff had alleged that she sustained injuries in an accident influenced by the 1 st defendant's negligence. Apparently, the 1 st defendant was driving motor vehicle registration number KMZ 56 ZN owned by the 2nd defendant. She averred that on or about the 24th day of May 2016 the plaintiff was lawfully travelling back from a business trip in South Africa when at or near Songo in Mozambique the vehicle they were travelling in was involved in an accident. Consequent to the accident ... ~ the plaintiff avers that she sustained multiple deep cut wounds on both knees and the left upper eyelids, , ·.'.lr:'1 · · loss or.3 upper teeth and a sprained neck. She further claims that as a result of the accident she lost items for sale valued at MKS00,000.00. It is against this background that the Plaintiff now claims damages for pain, suffering and loss of amenities of life, damages for loss of business properties valued at KS00,000.00 and costs of this action. I must state that the law 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 that the Plaintiff's actual loss. The principle was laid down in numerous case authorities more particularly by Lord Blackburn in the case of Livingstone v. Rawyards Coal Company (1880) 4 AC 25 in the following 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 ,; ~eJ . 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 now getting his compensation or reparation. I diligently perused the medical evidence as ~to the injuries and the prognosis given by the medict1l expert. I had the opportunity to observe the scars on the knees of the plaintiff as well as on the eyelids and the present physical, condition of the Plaintiff I gave meticulous thought to the written submissions filed by the counsel for the plaintiff. I went through the precedents cited by the counsel with a yi~w to assist this Court to make a critical evaluation of the damages. et'Ji.e- t Tirh\rane•MagWe'de v Cha. Hes Manyopola"nd' Nyamende Events & Transport Services Civil Cause Ni\ 809 of. Page 2 D.,., !. T ---- - - - - - - - - - - - - - - -~ - - On_ damages for pam and suffering, the plaintiff, thro1Jgh counsel, cited the case of Mayamiko · Lipemba v Prime Insurance Company Ltd Civil Cause No. 2493 of 2009 in which ·the plaintiff suffered a fractured mid shaft left tibia and soft tissue injuries. The plaintiff was awarded the sum of K3,500,000.00 for damages for pain and suffering and loss of amenities on 3rd September 2012. In this case, Counsel for the plaintiff recommends K4,500,000.00 as reasonable damages for pain and suffering. On loss of amenities of life, Counsel cited the case of Robert Henderson v Win-Win Garments Civil Cause Number 2770 of 2008, in which the plaintiff was awarded the sum of K250,000.00 for loss of ,., ' ameriities oHife only. The award was made on 11 th of May 2016. Iii total, the plaintiff was awarded the sum ofK400,000.00. It _ was therefore Counsel's submission that in the circumstances of this case, the reasonable compensation would be Kl ,000,000.00 for loss of amenities oflife. From the evidence before me, I take it that the plaintiff suffered deep cut wounds particularly on the knees. I had also the opportunity to appreciate this injury when the plaintiff came to testify during the assessment herein. I noticed that she is now left with ugly scars on her knees. I have all reason to believe that she underwent excruciating pain from the same. Apparently, she is still experiencing the aftermath of the injuries. She lamented that she cannot kneel for a long time a thing which has heavily affected her ability to use a pit latrine. In addition to that, she now experiences difficulty in walking up and down a staircase. Apart from that, the plaintiff lost three front teeth. She lamented on having problems chewing. I believe this means she has now lost the advantage of eating some things she would have loved to eat. ·Nevertheless, with~all due respect to Counsel for the plaintiff, I did not find the case authorities cited 3: herein as useful guide to the injuries sustained. I am aware that it is difficult to find case authorities bearing similar injuries to the case in question. However, there must be a semblance of similarity to offer comparability. The case of Mayamiko Lipemba (supra) involves a fracture and soft tissue injuries. The case herein by and large involves deep cut wounds and loss of teeth. That notwithstanding, _ ·:. the proposed sum of K6,500,000.00 as damages for pain and suffering, loss of amenities of life and for ~· · disfigurement as submitted by the Plaintiff is slightly on the higher side and awarding such to the Plaintiff will be contrary to the principle of restitutio intergrum and eventually being unfair to the ~..t,. r-,. Defendant. I therefore make awards as follows : < • '.! a1ften 1:"' :Timvane1Magwede Q'y·i~li.arles Mafi.yopo and Nyamende Events &-ffi:,ansport ~~ryj~~s Civil Gc;1.use . No. 80<:! of :m--~- - Page3 ':3ge3 ·, -r Pain and Sl:!ffering K2,000,000.00 Loss of amenities Kl ,000,000.00 Disfigurement Kl,000,000.00 In total the plaintiff is awarded a total of K4,000,000.00 under all heads. She is further awarded costs of this action to be taxed if not agreed by the parties. DELIVERED IN CHAMBERS THIS 3rct DAY OF APRIL 2018 ~ iiTI WYSONC ATA ,l a~ hTimvane...-Magwede ':v Charles1Mahyopo ahd Nyarhende Events & Trc:ln~Ro~t;Services qvil Cause N9:JW9 of Page 4 2016 _ _ · -· ;,