Cecilia Mkwakwata v Lloyd Mhango and Prime Insurance Company (Civil Cause 600 of 2017) [2018] MWHC 1229 (27 December 2018)

THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO.600 OF 2017 BETWEEN Cecilia Mkwakwata............................................... Plaintiff and Lloyd Mhango............................... .................................'..............................................ist Defendant Prime Insurance Company..................................... 2nd Defendant CORAM: Madalitso Khoswe Chimwaza, Assistant Registrar Matanda Iphani Zude Counsel for the Claimant Counsel for Defendants Court Clerk Introduction ORDER ON ASSESSMENT OF DAMAGES This matter was set down for assessment of damages following a default judgment dated 12th October, 2017 thereby settling the issue of liability. The defendant obtained an order of stay of execution of the default judgment on 8th November 2017, which was granted on condition that the defendant should file an inter parte summons to set aside the default judgement within 7days from date of service of the said order. The defendant did not file the summons for setting aside default judgment and the claimant filed a certificate of non- compliance with the stay order on 18th June 2018 and effectively the claimant was entitled to proceed with the default judgment hence the assessment proceedings Briefly the facts are that on or about the 7th October, 2016, the 1st defendant was driving a motor vehicle Mitsubishi Delica Minibus, Registration number DA 294 insured by the 2nd defendant. He was driving from the direction of Lilongwe towards Crossroads along Kamuzu Procession road. On approaching Maula Prison, the engines temperature rose to boiling point before he could pull over, a radiator exploded and flushed hot water which burned the legs of the plaintiff who was seated in front of the bus. The claimant suffered burning wounds on both legs and contusion of elbows. She has been left with ugly scars and her level of incapacity was rated at 16%. The claimant is now seeking damages for pain and suffering, disfigurement, loss of amenities of life, and special damages for hospital bills and obtaining police and medical report. ISSUE FOR DETERMINATION How much damages should the claimant be awarded. GENERAL PRINCIPLES ON DAMAGES A person who suffers injury as a result of another’s negligence is entitled to be compensated for the injury suffered by the negligent party. Such damages are awarded to compensate the plaintiff in so far as money can do (see Nakununkhe v Paulo Chakhumbira and Attorney General Civil cause no.357 of 1997 (Unreported). As was held in the case of Namwiyo v Semu et al [1993] 16 (1) MLR 369, in awarding compensation, the court attempts to put the plaintiff in the position he would have been but for the injury arising from the tort. Such damages however cannot be quantified by any mathematical calculation as such the court relies on decided cases of a comparable nature for guidance. Sight must not be lost however, of peculiar facts of each case in order to avoid occasioning injustice by inflexible maintenance of consistency and uniformity (Z>, Kwataine Malombe & Another vs. G. H, Chikho t/a Bee Line Minibus Civil Cause No. 3687 of 2001 (HC Unreported). 1. Pain and Suffering and Loss of Amenities of Life Pain is used to suggest physical experience of pain caused by and consequent upon the injury while suffering relates to the mental elements anxiety, fear, embarrassment and the like. On the other hand, loss of amenities of life embraces all that which reduces the plaintiffs enjoyment of life, his deprivation of amenity whether he is aware of it or not (See City of Blantyre v Sagawa [1993] 16 (1) MLR 67). In Kanyoni v Attorney General [1990] 13 MLR 169, 171 the court held that loss of amenities of life must include the loss of all the things the claimant used to be or to do, see, and experience-they need not be of leisurely nature at all. In the case of Manley v Rugby Portland Cement and Company [1950] No 286 (reported in Kemp and Kemp, “Quantum of Damages,” Volume 1 2nd edition 1961 atp.2640) Birkett, LJ had this to say: ‘'There is a head of damages which is sometimes called loss of amenities; the man-made blind by accident will no longer be able to see familiar things he has seen all his life, the man has both legs removed will never again go upon his walking excursions, things of that kind-loss of amenities. ” Although pain and suffering and loss of amenities for life are distinct however for purposes of quantum the court does consider them together and make a single award under those heads, (see Henry Manyowa v. Phiri and Prime Insurance Co. Ltd Personal Injury Cause No. 139/2012; Andrew Katola v. Prime Insurance Co Ltd Civil Cause No. 2807/2009). In the present matter Counsel made submissions of amounts to be awarded. Having considered comparable case awards like the case of Banda and Ellen Banda vs Tatlas Fast save, Civil cause No. 229 of 2016 in which the plaintiff suffered fractures of the thigh, traumatic amputation of the forearm an award of K7,000,000,00 was made for pain and suffering and loss of amenities of life. The injuries suffered by the claimant in the present case are significant though not of the same magnitude as the above case. There is no doubt that she endured pain and suffering during this period as she was nursing the burn wounds. For this pain and suffering and loss of amenities of life the claimant is awarded a sum of I< 2,500,000.00. 2. Damages for Disfigurement Damages for disfigurement are awarded for permanent scars or deformity on the body of the plaintiff. Looking at some comparable cases like Mbalame v. Prime Insurance Co Ltd Personal Injury Cause No. 244/2014 and Chipala v. Prime Insurance Co Ltd Personal Injury Cause No.472/2013 where in 2015 the court awarded the sum of K950, 000 for disfigurement. In both cases there was limb shortening. Counsel cited the case of Triza Lunduka vs Zenengeya and United General Insurance Company Ltd, Civil Cause No. 1144 of 2016, a plaintiff who was left with a shortened leg and scars, was awarded the sum of KI,500,000,00. The award was made recently in 2017. This court finds the injury suffered by claimant to have left visible ugly scars on her legs that will reduce her self-confidence as a woman and will have reduced the quality of life for her. The court awards a sum of 000,000.00 for disfigurement. 3. Special Damages It is trite law that special damages must be strictly pleaded and proved. The plaintiff is claiming expenses incurred on hospital bills for four(4months), police and medical report. The claimant did not provide any evidence as to how much was spent on hospital bills nor in obtaining the medical or police report. This court finds that there was no strict proof for the same it is therefore not awarded. ORDER In summary the court has made the following awards: Pain and suffering and loss of amenities of life: K2,500,000 Disfigurement K800,000.00 The total award made is K3,300,000. claimant is awarded costs of the action to be assessed if parties do not agree. Right of Appeal Either party aggrieved by the decision of the Registrar has the right to appeal. Made in chambers this 27th day of December, 2018 Madalitso K. Chimwaza (Mrs) ASSISTANT REGISTRAR