Banda v Kondwani and 1 other (Civil Cause 1122 of 2014) [2022] MWHC 240 (19 January 2022)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 1122 OF 2014 BETWEEN IVY BANDA... is ccc cce cesse ces cased nen eoe end ene bar neh ae catene res svera cet oenerees tye ten cece CLATVIANT AND JEREMIAH KONDWAN cesses cesses ssesssscecss secu ees cesses ens see sesvae sts sasens seers? DEFENDANT PRIME INSURANCE COMPANY LIMITED... 00.00 cee see cee see cennee nee cea eee cae sereed? DEFENDANT CORAM: KAPASWICHE : ASSISTANT REGISTRAR (AR) Mr. Kadzakumanja ; Counsel for the Claimant Mr. Chikwakwa : For the Defendant Mr. Kurmwenda : Clerk/ Official Interpreter ORDER ON ASSESSMENT OF DAMAGES BACKGROUND This is a claim for damages for pain and suffering; joss of amenities of life and disfigurement and costs of the action. This assesment of damages follows a consent order executed by the parties in which the 2 defendant accepted liability limited to the policy limit balance of MK3,350,000.00, The matter was scheduled for assesment of damages hearing on the 14 day of October 2021 where the Claimant gave her testimony. The claimant deponed a witness statement which he adopted in court, THE EVIDENCE The claimant was the only witness in the present case. She is aged 56. Her evidence was that on the 19" day of August 2013, she wasa passenger in a motor vehicle registration number BR 9726 Toyota Hiace Minibus from Mchinji to Lilongwe. As the said Motor Vehicle was approaching Kamuzu Procession Road Round About, the driver lost control of the said Motor Vehicle and the vehicle went to the extreme offside of the road where It overturned. The Claimant lost conscious which she regained later after she was taken to Kamuzu Central hospital. She was hospitalized for a period of seven days. The injuries sustained by the Claimant were rib fracture and a cut on the elbow and she tendered her medical report as evidence on the same. The Claimant stated that she experiences difficulties in walking and sitting down and also she has difficulties when sleeping and doing manual work, Prior to the accident, she was doing Kaunjika business but she stopped because she can no ionger sit down for a long time due to the effect of the injuries. The above presents a summary of the material evidence in the present matter. THE LAW ON DAMAGES 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 Piaintiff’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 sur 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 now 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 MLL, 170 at p.i72. As q such this court will have recourse to comparable cases to arrive at the appropriate quantum of damages for the plaintiff. SUBMISSIONS AND ANALYSIS DAMAGES FOR PAIN AND SUFFERING ‘Pain’ is used to suggest physical experience of pain caused by consequent act upon the injury while ‘suffering’ relates to the mental elements of anxiety, fright, fear of future disability, humiliation, embarrassment, sickness and the like as was held in City of Blantyre 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; “thare 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 INCAPACITATION AND DISFIGUREMENT Damages 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) 1 MLR 297 (SCA). In the present case, the claimant prayed for a total sum of MK4, 000,000,00 as damages for pain and suffering, loss of amenities of life and disfigurement. However, in the spirit of the consent order that the parties had entered, the Claimant accepted that the said damages should be assessed at MK3,350,000.00, The defence did not file written submissions but in the oral submissions they indicated that the court should bear in mind the policy timit balance in making the finai determination. { have considered the evidence of the claimant and the medical report attached and | am of the view that it is reasonable that the whole policy limit balance be paid as damages on all heads of claims brought by the Claimant. FINDING In view of the above discussion, this court proceeds to award the Claimant a total sum of MI3,350,000.00 as damages on all heads of claims. The claimant is further awarded costs of this action. MADE IN CHAMBERS THIS 19"* DAY OF JANUARY 2022 ANTHONY LIZANI KAPASWICHE ASSISTANT REGISTRAR