Msisha v National Bus Company Limited (Personal Injury 368 of 2016) [2017] MWHC 106 (26 June 2017)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 368 OF 2016 BETWEEN DORCAS KITALO MSISHA ............................................................................. PLAINTIFF AND NATIONAL BUS COMPANY LIMITED ...... ............. .................. ........ ........ DEFENDANT CORAM HER HONOUR �RS E. BODOLE, ASSISTANT REGISTRAR Mwakhwawa, of Counsel for the Plaintiff Counsel for the Defendant, absent Mrs. Ngoma, Court Clerk ORDER ON ASSESSMENT OF DAMAGES Introduction The plaintiff for personal the defendant. commenced injuries. this action against the defendant seeking Judgment on liability for personal injuries was entered compensation against The matter has now come for assessment of damages. I must thank Counsel for the plaintiff for the authorities usefu I to th is court. on assessment of damages which were The Evidence During the assessment herself. plaintiff proceedings only one witness testified and that was the The facts of this case are that the plaintiff She works as a teacher at Chigwaja 2014 she was a passenger in motor vehicle is aged 33 years and is married with two On gth Primary School in Blantyre. registration number BQ 4802 to the defendant. village at Chabwera The bus was coming from Karonga to road, the bus along Liwonde-Machinga children. August, Scania Bus belonging Upon arrival Blantyre. overturned. A police personal was tendered the plaintiff suffered injuries. P2. She was taken to she was later the injuries· Central Hospital. serious in evidence and marked exhibit As a result of the accident report to that effect taken to Liwonde District Hospital. Due to lack of treatment Queen Elizabeth suffered sustained wrist and she was with the POP for 6 weeks. She was treated from gth August, suffered, range of motion of the left hand. 2014 to 20th September, 2014. As a result was tendered a fracture in evidence and marked exhibit of the injuries she cannot lift heavy objects at work and at home. She also has reduced she P.3. It shows that she on the as an out-patient she of a cuboid bone on the left wrist. A POP was applied report showing A medical The plaintiff is claiming disfigurement. He is claiming damages for obtaining t a sum of K3,000.00 and Kl0,000.00 as special he medical and Police reports respectively. damages for pain and suffering, los s of amenities of life and General Law on Damages A person who suffers the remedy of damages. non-pecuniary losses. bodily injuries due to the negligence Such damages are recoverable of another for both pecuniary is entitled to and The principle underlying the award of the damages is to compensate v Prime Insurance Co. Ltd the injured party as nearly as possible Civil Cause No. 177 of 201 as money can do it- Elida Bello 2 (unreported). cases of in monetary The damages cannot be quantified formula but by use of experience and guidance decided 2 AC 773. The court, however, currency devaluation - Kuntenga 202 of 2002. nature - Wright v British considers and Another v Attorney a broadly similar Board [1983] the time the awards were made and Railway terms by use of a mathematical by awards made in affordable General Civil Cause No. The non-pecuniary of life and loss of expectatio loss is also called Benetollo of 1993 (HC). v Attorney head of damages include pain and suffering, by the court. loss of amenities Pecuniary n of life. These are assessed special damages and must be pleaded and proved. - Renzo General and National Insurance Co. Ltd Civil Cause No. 279 Pain and Suffering and mental anguish Pain and suffering operations his expectation realizes Appeal Cause No. 67 of 2013. the condition is attributable injury to the plaintiff's such as that suffered or to any necessary by a person who knows that surgical of life has been reduced to w�ich he has been reduced or who being severely -Sakonda incapacitated, Civil v S. R. Nicholas that the plaintiff sustained a fracture It is clear from the evidence on the left wrist and was in POP for 6 weeks. She was treated from 3th August, plaintiff a lot of pain and suffering. 2012 to 20th September went through bone of a cuboid as an out-patient that the 2014. This is a clear indication of Life Loss of Amenities 13 MLR 169. It means that she is incapable to deprivation is attributable Loss of amenities in some sport or past-time [1990] General she used to do. It is clear from the evidence activities as she used to. She has reduced enjoy life to lift heavy items at school is unable On top of that she and a mother. is a teacher. of the plaintiff's which she formerly enjoyed - Kanyoni capacity to engage v Attorney some of performing is unable to that the plaintiff and at home. The plaintiff The limited woman is a married use of the left hand has range of motion of the left hand and she far greater teacher. implications on her ability to perform household chores and work as a Deformit y/Disfigurement or mentally physically reasonable for someone to do what any either is a limitation Disability other person can do without Deerless Logistics disfigurement one has to live with permanently. the plaintiff of motion shows has limited is not a matter to be taken lightly Ltd Civil Cause No. 2888 of 2007 the court stated that that It is something in this court shows that lack of normal range range of motion of the left hand. The The evidence adduced and casually. that she is disfigured. accommodation. In Ching'amba v Award of Damages Personal a fracture Insurance sustained Company Limited of his arm and the Injury wrist. In Phiri v Reunion 2014 the plaintiff for one day and the arm was case in a POP for over one and half months. awarded a sum of Kl,000,000.00 amenities of life and case herein the plaintiff a amenities and in view that the award was made some time back, I award as damages for pain and suffering, as damages for pain and suffering, on 7th August, of life and disfigurement. disfigurement Cause No. 736 of He was admitted 2015. In view of the decided sum of Kl,500,000 He was loss of cited, loss of I Special Damages General to be pleaded Insurance damages are supposed and National Special Attorney a party has not proved special circumstances did not allow the claim for loss of profits pleaded to be specifically and strictly the period the vehicle basis that during profit and use of the vehicle. can be awarded. proved. and proved. In Renzo Benetollo v Co. Ltd (supra) damages reasonable the court held that where compensation In Phiri v Daudi [1992] 15 MLR 404 (HC) the court in the as these were special damages The court awarded damages that had on the was with the defendant, the plaintiff lost In the present amount he is claiming case, there is no evidence to show that the plaintiff the medical report expended from Queen Elizabeth the for obtaining This is a free hospital Central Hospital. should have been shown to the court. Howe that the plaintiff had to travel to the hospital medical report. Reasonab award him a sum of K2,500.00 ver, this as costs for obtaining the medical report. so if some money had been spent, from home in order to obtain the that court is mindful of the fact le compensation for that is fair and just. I, therefore, I also award the plaintiff and also award him costs of the action. a sum of K3,000.00 as costs for obtaining the Police report, Conclusion In conclusion, costs of the action. the plaintiff is hereby awarded a total sum of Kl,505,000.00 and Pronounced in chambers this 26th day of June, 2017 at Blantyre. EDNA BODOLE (MRS) ASSISTANT REGISTRAR 5