Chirwa v Kamanga (Civil Cause 109 of 2020) [2022] MWHCCiv 25 (23 June 2022)

: : : : : REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER tog OF 2020 BETWEEN FESTON CHIRWA CLAIMANT AND EMILY KAMANGA 157 DEFENDANT PRIME INSURANCE COMPANY LIMITED 280 DEFENDANT CORAM: KAPASWICHE Kambalame Chapo : ASSISTANT REGISTRAR (AR) : Counsel for the Claimant : Counsel for the Defendant Mr. Kumwenda : Clerk/ Official Interpreter ORDER ON ASSESSMENT OF DAMAGES BACKGROUND Page 1 This is my ruling ona claim for damages for pain and suffering; loss of amenities of life; disfigurement, damages for loss of earnings and earning capacity and costs of police and medical reports. This assesment of damages follows entering of a default judgment against the defendants on the 9'" day April 2021 and the matter was heard in of March 2020. Hearing of the matter was done on the the presence of both parties. In essence, the Claimant prayed for a total sum of MK24, 580, 016 .00 as total compensations for all the heads of the claims while the Defendants prayed that the Claimant be awarded MK1,500,000.00 as total compensation. : : : : : : : : THE EVIDENCE CASE FOR THE CLAIMANT The Claimant testified as a lone witness on his part. He adopted his witness statement. His evidence was that on 7" January 2020 at around 08:00 hours, he was riding a bicycle from the direction of area 18 roundabout going towards Bingu National stadium along area 18 new road in the city of Lilongwe. A motor vehicle Nissan X-Trail driven by the 1* Defendant and insured by the and Defendant was coming behind him going the same direction. Upon arriving at Bingu National stadium, the 1* defendant encroached on the left offside lane of the road at an excessive speed and the vehicle hit the Claimant. As a result of the impact of the accident, the Claimant sustained traumatic brain injury, deep cut in the head, bruises on the right leg, bruises on the right arm and scars on the affected parts and he was hospitalized for a day at Kamuzu Central Hospital. As a result of the accident. The Claimant stated that he still feels pain on his legs; frequent headaches; he ca no longer ride a bicycle and that he lost earnings for three months in which he could not work. He works as a security guard and gets a salary of MK35, 000.00. He was also doing a bicycle taxi business where he was earning between MK3, 000.00 to MK5,000.00 in a day. His permanent capacity was assessed at 25%. A medical report was tendered as evidence of the injuries suffered. During cross-examination; the Claimant told this Court that it is true that he suffered traumatic brain injury but he explained that his problem is that he suffers frequent headaches and not that he has a mental illness. He also stated that as a security guard he works at night and sleeps in the day but he still finds time for the bicycle taxi business though he admitted that he did not have evidence of his business income. Page 2 : : : : : : CASE FOR THE DEFENDANT The Defendant had one witness who filled a witnessstatement. ThewitnessfortheDefencehappens to be a Legal Services officer for the 2110 Defendant. His evidence was that his job involves meeting with the insured or their drivers who come to report accidents involving vehicles insured by the pnd Defendant and he does help the clients to fill Accident Report Form. He also meets with victims to confirm injuries suffered in accidents. The evidence from DW1 was that on or about the 24" day of April 2020 the 1%* Defendant came to his office to give a report on the accident in question and according to the Accident Form Report from the 1*t Defendant; the Claimant sustained bruises on the leg and a small cut in the head. On 27" April 2021, DW1 met the Claimant to assess the injuries that he suffered and the Claimant gave DW1 a heath passport that was exhibited in this Court. The Claimant confirmed that the injuries that he suffered were a cut on the head, bruises on the legs and sprained right arm. The Claimant showed DW1 the injured parts which had scars and DW1 took pictures which he exhibited. Throughout the interaction the Claimant was of sound mind. DW1 stated further that the policy of insurance in question has a cover limit of MK5,000,000.00 for personal injuries. The above presents a summary of the material evidence from the parties. The parties filed their final submissions for consideration by this Court. 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 recoverdamages. Thefundamentalprinciplewhichunderlinesthewholelaw 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 money which will put the party who has been injured, or who has suffered loss, in the Page 3 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 [19921 15 M. L. R. 170 at p.172. As 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; "there 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 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). Page 4 : : : : : :: : : : : : : : : : DAMAGES FOR LOSS OF EARNINGS AND EARNING CAPACITY Loss of earnings is the total loss or actual reduction in the income of the claimant as a result of the injury suffered, while loss of earning capacity is the likely or prospective loss or reduction in the income of the claimant a result of the injury suffered. See Kambwiri v Attorney General (1991) 14 MLR 151 (HC) Tembo AR, adapting from McGregor in Damages, 5th ed., At page 905 states as follows in Manda v Malawi Social Action Fund Civil Cause No. 756 of 2003 (unrep): "In calculating the loss of earning capacity the courts have evolved a certain method. The amount of loss of earning is calculated by taking the figure of the plaintiff's present annual earnings less the amount, if any, which he can now earn annually, and multiplying this figure by a figure which, while based upon the number of years during which the loss of earning power will last, is discounted so as to allow for the fact that a lump sum will be given now instead of periodic payments over years. The latter figure has come to be known as the multiplier and the former figure, the multiplicand... Further adjustment however has to be made to the multiplicand and multiplier on account of other factors like inflation the so called contingencies of life and taxation." Multiplicand The claimants' incomes from their respective businesses will be used as multiplicand. Multiplier The multiplier is the difference between the average life expectancy in Malawi and the age of the claimant. The INDEPTH model estimate of the life table for males and females in Malawi as at 2008, according to Population and Housing Census 2008, Analytical Report Vol. 2 (mortality) published by National Page 5 Statistical Office, August 2010, puts exact life expectancies of a male and females at different ages (see Table below). Age 5 15 25 35 45 55 65 75 Male 48.3 51-9 51.1 47.2 42.8 38.4 34-4 31.2 28.4 25.8 23.4 21.1 18.5 15.6 13.0 10.4 8.1 5.8 Female 51.4 55.1 50.4 45-9 41.6 38.0 33.2 30.6 27.6 24.5 21.1 17.1 14.5 11.4 8.8 a9 : : : Page 6 2.9 3.1 in the recent case of Lucy Chitsotso Chatayika v Emmanuel Kaludzu and United Alternatively, General insurance Co, Ltd, Civil Cause No. 1146 of 2016 (unrep), the court put life expectancy in Malawi at 61.2 years. sometimes courts have taken the approach of determining loss of earning capacity interms of percentage of the plaintiff's permanent incapacity. In Makina v Sammy's Transport Ltd and another Civil Cause No. 89 of 2011 (unrep), the plaintiff's permanent incapacity was assessed at 45 percent. The court held that his loss earning capacity was 45 percent. ASSESMENT OF THE FACTS AND COMPARABLE AWARDS From the evidence before this Court; the injuries suffered by the Claimant are as presented by the Defence witness namely; a cut in the head, bruises in the legs and sprained right arm. The traumatic brain injury claim is not a valid claim when one considers the evidence before this Court. In the present case, the claimant prayed for a total sum of MK24, 580, 016.00 as a global sum of damages payable, DAMAGES FOR PAIN AND SUFFERING, LOSS OF AMENITIES OF LIFE AND DISFIGUREMENT The Claimant claimed a total of MK21, 000,000.00 on this item. Four comparable awards were cited in support of the claim. The first case was the case of Emma Muniya v. Prime Insurance Company limited, personal injury cause no.344 of 2018. In this case, the claimant sustained spinal Injuries, muscle spasms to the Thoraco Lumbar spine and a fracture of the lateral malleolus on the left ankle with the result that the claimant has severe backache, walking difficulties, slurred speech, loss of memory and that she cannot do her normal duties like farming or cooking. The claimant was awarded a total sum of MK6, 163,500.00 for pain and suffering, loss of amenities of life and disfigurement on 2156 January, 2019, The second case was the case of Chifundo Semba (Suing through next of kin Francis Semba) v Chinsinsi Chaluluka, Thengo and Prime Insurance Company Limited, personal Injury Cause Number 886 of 2016. The claimant sustained severe head injury with lacerations. The motor function of the right side was affected and he had a right sided body weakness. He developed scars, problem with talking and walking, he forgets a lot. He has problems with his vision as he had cerebral visual Page 7 : : : : : : : : : : : : impairment. He requires special attention and to examined regularly by medicalpersonnel. Thecourt awarded MK10,000,000.00 for pain and suffering, loss of amenities of life, disfigurement and Mkz, 500,000.00 for future medical care on 16%" January, 2019. The third case was the case of Chifundo Pheluwa v Liberty General Insurance Company Limited, Personal Injury Cause No. 359 of 2018. The claimant sustained a fracture of the left femur and severe head injuries. She was treated at Queen Elizabeth Central Hospital for 4 months. She could not walk properly, visit friends and family, attend prayers, and stopped going to school because of mobility problem. She had her brain scanned and had problems with her memory. The claimant was awarded a total sum of MK7,000,000,00 for the personal injuries, pain and suffering, loss of amenities of life and disfigurement on qth December, 2019. The last case cited by the Claimant was the case of Alefa Mkwate v. Kunje Suwedi and Prime Insurance Company Limited 2019 MWHC 120. The Claimant sustained Severe head injuries, fracture of tibia and fibula on the right leg leading to deformed and shortened leg, bruises and multiple cuts on the left leg. The claimant was failing to do normal household chores and had difficulties in walking. The claimant was awarded a total sum of loss of amenities of life and disfigurement on 2507 March MK6,000,000.00 for pain and suffering, 2019. My immediate observation is that the comparable awards used by the Claimant do not relate to the injuries suffered by the Claimant in the present case, The Claimant's in the precedents suffered more than the present Claimant hence in will have to keep this in mind when considering the awards cited by the Claimant. believe do relate well with the injuries suffered by the The Defendant cited two cases which Claimant of the present case. The first case is the case of Chikumbutso Paul (Suing through his father and litigation guardian Francis Paul) vs Prime Insurance Company Limited; Personal Injury Cause Number 747 of 2015 where the Claimant sustained occipital fracture on the head, two deep cut wounds on the head and blood oozing from the ear. He was awarded MK2,503, 000.00 for pain and suffering; loss of amenities of life and disfigurement on 315t May 2018. The second case was the case of Alick Manyamba v. Mc Donald Bengo & Prime insurance Company Limited; Personal Injury Cause No. 566 of 2013, where the Claimant sustained a deep cut on the forehead, cuts on the back, head and nose and multiple bruises. The Court made an award of MK1,150,000.00 for pain and suffering and loss of amenities of life on 12" June 2018. have considered these two cases whilst bearing in mind the fact that the value of the currency has depreciated to a greater extent over the past four | proceed to award a sum of years. Having considered the circumstances of the present case, MK3,800,000.00 as total damages under this head. Page 8 : : : : : : DAMAGES FOR LOSS OF EARNINGS AND EARNING CAPACITY AND FOR POLICE AND MEDICAL REPORT The claim under this head has two elements; the claim for the lost earnings and future earning capacity. The Claimant lost pay for three months as a result of the accident and his monthly salary was MK35,000,000.00. The other claim relates to loss of money from his bicycle taxi business. The claim on how much the Claimant used to make in his business has to be considered in light of the fact that it is not backed with any evidence. The Claimant claimed MK3,570.016.32 on this item and the calculations have been based on this assumed income. In the circumstances of the present case; | proceed to allow MK1,000,000.00 as total damages payable under this head. MK10,000.000 as costs of police and medical report. | further award FINDING In view of the above discussion, this court is of the view that a global sum of MK4,810,000.00 will be sufficient recompense on all heads of claims made by the claimant. Judgment is accordingly entered in favour of the Claimant in the sum of MK4,810,000.00. The claimant is further awarded costs of this action. : : : : : : : : : : : MADE IN CHAMBERS THIS...%.. ee DAY OF JUNE 2022 ANTHONY PTTILIZANI KAPASWICHE ASSISTANT REGISTRAR Page 9