Makwangwala v Van Guilder & Ors. (Personal Injury 213 of 2015) [2017] MWHC 38 (23 February 2017)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 213 of 2015 BETWEEN: JUSTIN MAKWANGWALA ............................................................ .................. ................. PLAINTIFF AND HENDERSON VAN GUILDER .............................................................................................. 1 T DEFENDANT JUSTICE KATIKA t/a MCHINJI BOYS ................................................................................. 2No DEFENDANT PRIME INSURANCE COMPANY LIMITED ......................................................................... 3R0 DEFENDANT CORAM: CM MANDALA: ASSISTANT REGISTRAR AM Malijani: Counsel for Plaintiff Banda & Associates: Legal Practitioners for the 1st and 2nd Defendants M&M Global: Legal Practitioners for the 3rd Defendant Chitsulo: Court Clerk ORDER ON ASSESSMENT OF DAMAGES INTRODUCTION AND BACKGROUND This is an order for assessment of damages pursuant to a Consent Order on liability issued on 1st December 2016 by the Honorable Assistant Registrar, Her HonorKanthambi. In this order, judgment was entered for the Plaintiff against all Defendants; damages were to be agreed by the parties failing which to be assessed by the Court; the 3rd Defendant's liability was limited to the maximum policy limit of KS,000,000.00 and costs to be agreed between the parties, failing which to be taxed by the Court. This court will proceed to determine the quantum of damages to be awarded to the Plaintiff. EVIDENCE Mr Justin Makwangwala told the Court that he was employed befo re he sustained the injury and that he is now unemployed. At that time, Makwangwala was working for Top Range as a security guard. He made K20,000.00 per month but did not have evidence to that effect as they would receive their salaries by hand. The Plaintiff adopted his witness statement as part of his evidence and it states: I am JUSTIN MAKWANGWALA of c/o Ndunde CCAP School, Private Bag 72, Chiradzulu, in the Republic of Malawi and state as follows: 1. 2. I am an adult. I am the Plaintiff in this matter and brought this matter in my own right. 3. On or about 14th April, 2013 I was a pedal cyclist riding a bicycle from the direction of Kamba robots heading towards Kapeni Robots. 4. A motor vehicle Scanio Truck Reg. No. BLK 3272 driven by the 1st Defendant was coming from the opposite direction. 5. Suddenly, after crossing Naperi Bridge, the said motor vehicle left its lane on the left and hit me on my side on the other side of the road. 6. As a result of the accident I suffered very serious and despicable injuries. I sustained a crushed right leg leadin g to amputation of the leg. I also suffered an open fra cture of the right humerus. I have a wrist drop . I was admitted to Queen Elizabeth Central Hospital twice f rom 14th April to 1st July 2013 and also from 9th January to 28th January 2014. It was during my second admission that my right leg was amputated after it had developed an inf ection in the bone. My permanent incapacity was assessed at 75 %. I exhibit h ereto a copy of a medical report marked "JM1 ". (see copy of medical report} 7. As a result of the accident, I lost the right lo wer leg and I cannot walk without the aid of clutches. My right arm has also been deformed and I cannot do any work. I am permanently crippled and physically disfigured and disabled. I cannot do any work an d I have been rendered totally incapacitated. In his o ral evidence, the Plaintiff explained the injuries that he sustained. Heto ld t he Cou rt that he susta in ed inj uries on his head - the scalp and received stitches . The Plaintiff had tro ubl e with the wounds and the Court noted visible scarring on the scalp and ha ir loss around th e scar. The Pla intiff also sustained a fracture on his right hand . The Court noted visible scarring and severe deformity of the hand. The bone broke and could not meet as it healed . The doctors wanted to place meta l rods in order to straighten t he arm but decided against it since the vei n in the arm had been severed anyway, and pla cing the rods would not have any effect on functi on ality of the arm . The bone grew on top of the othe r bone. The court saw the scarring and could see the prot ruding bone on th e Plaintiff's arm . The Pla intiff's left knee also sust ained an injury and the sca r was visible . The Plai nt iff cannot kneel on t he injured knee, and any contact with the knee startles the plaintiff and caus es him pa in. The Plaintiff also fractu red his right leg and metal rods we re placed in order fo r it to heal. As the bon e was growing back into place, the rods were removed and the leg was placed in a Plaster of Pari s. On the Plaintiff's final check-up at the hospital he was told that he had develo ped an infect io n in t he leg and that his leg would be amputated . The leg was amputated in Dece mber. Since t he Plaintiff susta ined the injury he has not been able to find employm ent to support his fam ily. He also withsta nds a lot of pain every single day an d this brings him down because he ca nnot do anythi ng for himself. The Plaintiff's evidence was not opposed . SUBMISSIONS BY COUNSEL FOR THE PLAINTIFF Counsel for the Plaintiff f iled wri tten submissions in support of the application . These submissions laid out the comparable awards which I will discuss subsequently. I should commend Counsel for the Plaintiff for the copies of the judgments that he furnished to the court. ASSESSMENT GUIDELINES Damages for personal injuries are awarded for the plaintiff's both pecuniary and non-pecuniary losses. The pecuniary losses include the loss of earnings and other gains, which the plaintiff would have made had he not been injured, and the medical and other expenses to which he is put as a result of the injury. The non-pecuniary losses include pain and suffering, loss of amenities of life and loss of expectation of life. The principle underlining the award of damages is to compensate the injured party as nearly as possible as money can do it. See Cassel and Co v Broom {1972} AC 1027. See also Tembo v City of Blantyre and The National Insurance CoLtd- Civil Cause No. 1355 of 1994 (unreported). In the case of Tionge Zuze (a minor, through A. S. Zuze) v Mrs Hilda Chingwa/u, Nyirenda AR, cited the case of HQ Chidule v Medi MSCA 12 of 1993 where it was stated that; "in assessing damages for pain and suffering, the court must consider the pain which. the particular plaintiff has suffered because the circumstances of the particular plaintiff are bound to have a decisive effect in the assessment of damages ... Where a claim relates to non-monetary loss in respect of which general damages are recoverable it is not possible to quantify the loss in monetary terms with mathematical precision. In such cases courts use decided cases of a comparable nature to arrive at an award." In the case of Malamulo Hospital (The Registered Trustees) v Mangani [1996] MLR 486 (SCA), it was stated that: "It is, therefore, recognised by the courts that awards of comparable injuries should be comparable. This is done by looking at previous awards of similar cases and adjusting the award according to the fall of the value of the money." The court bears in mind the sentiments laid out in Steve Kasambwe v SRK Consulting (BT) Limited Personal Injury Cause Number 322 of 2014 (unreported) : 'At times the court is faced with situations where the comparative cases have been rendered obsolete because of the devaluation of currency and inflation. It would not achieve justice if the court insisted on the same level of award as was obtaining in the previous cases. In such situation, when deciding the new cases, the court must take into account the life index, i.e. cost of living and the rate of inflation and the drop-in value of the currency. The court must therefore not necessarily follow the previous awards but award a higher sum than the previous cases.' The Plaintiff is claiming damages for pain, suffering and loss of amenities of life; damages for deformity damages for loss of future earnings; special damages as pleaded, cost of obtaining a prosthetic leg and its maintenance and costs of the action. This court will not make an award for the special damages and cost of prosthetic leg and its maintenance as no evidence was led to prove the same. Cost of pol ice and medical reports are special damages and must be specifically pleaded and proved as required by law -Govati v Monica Freight Services (Mal) Limited (1993] 16(2) MLR 521 (HC). A Plaintiff who cla ims special damages must therefore adduce evidence or facts which give satisfactory proof of the actual loss he or she alleges to have incurred. Counsel for the Plaintiff submitted numerous comparable awards for the court to use. The court will on ly highlight the citations whose copies were provided to the court. These are: • Anastazia Elias & lanjesi Watson (suing as father and next friend of Yohane Watson, a minor) v Mu/Ii Brothers Limited High Court, Zomba District Registry, Civil Cause Number 389 of 2011 where the 1st Plaintiff sustained a crushed leg, amputation of the right leg and bruises on the face and hands. The Plaintiff was awarded the sum of MKl0,504,500.00 as compensation being the balance on the sum arrived at by the court after payment by the insurance of t he maximum money under the policy. The total sum awarded was MK15,504,500.00. • Stanford Malimau v Mo ta Engi/ High Court, Principa l Registry, Civil Cause Number 206 of 2011 where the Plaintiff sustained a comminute fracture (where a bone is broken, splintered or crushed), the leg was amputated lOcm below the knee, wound was stitched and dressed with bandages . The Plaintiff went to the hospital afte r four days and spent three days in hospital. He was discharged 10 days later. Afte r the injury, the plaintiff uses clutches, cannot walk long distances, cannot ride a bicycle and cannot farm. The Assistant Registrar awarded him MKl0,000,000.00 for pain and suffering and loss of amenities of life and MK800,000.00 for deformity on 1ih June 2011. Counsel for the Plaintiff proposes a quantum of MK20,000,000.00 for pain, suffering and loss of amenities and MKS,000,000.00 for disfigurement as adequate compensation for the Plaintiff. COMPENSATION The court notes that Counsel for the Plaintiff selected cases where the injuries sustained were similar to those sustai ned by the Plaintiff in the present matter. For this, I am indebted to Counsel for citations that are on t he point while acknowledging that no two cases can be exactly the same . The Plaintiff sustained the following injuries: a crushed right leg leading to amputation of the leg, open fracture of the right humerus, a wrist drop. The Plaintiff was admitted to Queen Elizabeth Centra l Hospital twice from 14th April to 1st July 2013 and also from 9th January to 28th January 2014 - a total of 95 days (over 3 months). During the second admission, t he right leg was amputated . Permanent incapacity was assessed at 75%. After the accident, the Plaintiff cannot walk without the aid of clutches. The right arm has also been deformed and he cannot do any work. Pain and Suffering and Loss of Amenities of Life The word 'pain' connotes that which is immediately felt upon the nerves and brain, be it directly related to the accident or resulting from medical treatment necessitated by the accident while 'suffering' includes fright, fear of future disability, humiliation, embarrassment and sickness . See:lan Goldrein et al, Personal Injury Litigation, Practice and Precedents(Butterworths, 1985) 8 and City of Blantyre v Sagawa[1993] 16(1) MLR 67 (SCA). The expression 'loss of amenities of life' simply means loss of faculties of pleasures of life resulting from one's injuries. Da mages fo r loss of amenities of life are awarded for the fact that the plaintiff is simply deprived of t he pleasures of life, which amounts to a substantial loss, whether the pla intiff is aware of the loss or not. See:Poh Choo v Camden and Islington Area Health Authority [1979] 2 Al l ER 910 andCity of Blantyre v Sagawa [1993] 16(1) MLR 67 (SCA) at 72 . As stated the Plaintiff claims a total sum of MK25,000,000.00 for the injuries. In this case, the Plaintiffs injuries are very serious. The Pla intiff was subjected to long stays in the hospital and had to withstand some painfu l procedures. It cannot be doubted that the Pla intiff had to endure a lot of pain and was constantly apprehensive of what the result of his injuries would be. And indeed, his fears were substantiated when his leg was amputated and his arm could not be repaired nor could it function . In the Elias Case, the Plaintiff therein sustained a crushed leg which was eventually amputated and bruises on the face and arms. The Plaintiff there in was awarded the sum of MK15,504,500.00 as damages for pain and suffering. In the present case, however, the Plaintiff sustained more serious injuries than those sustained by the Plaintiff in the Elias Case . For these reasons, the Plaintiff herein is awarded the sum of MK5,000,000.00 as damages for pain and suffering Further, the Plaintiff has now been confined to the use of clutches for his mobility, he cannot go back to wo rk as a security guard and therefore has no source of livelihood. Further, the plaintiff cannot walk and has to depend on other people to help him on a daily basis. He is dependent on painkillers as he is in constant pain on a daily basis. This also affects the Plaintiff mentally and he stated tha t he spends a lot of time thinking about his injuries and his lost ability to suppo rt his family. The Plaintiff is therefore awarded the sum of MK3,000,000.00 as damages for loss of amenities of life. Deformity Counsel fo r the Plaintiff cited James Chaika v NICO General Insurance Co Ltd (cited above) whe re the Honou rable Justice Potani stated that 'Disfigurement is not a matter to be taken lightly and casually as it is something that one has to permanently live with. In this case, the plaintiff will most likely walk with a limp for the rest of his life which is not a pleasant thing.' The Plaintiff was awarded the sum of MK300,000 for disfigurement. The court in this matter appreciates the deformity and disfigurement that the Plaintiff herein will have to live with. His leg was amputated, and his hand is severely deformed. He has no use of his fingers on that hand and has terrible scarring on that hand as well, further the Plaintiff has scars on his other leg, face and scalp. There are a lot of visible defects that can be seen by a person who merely looks at the Plaintiff. In line with the award made in Malimau v MotaEngil(cited above) of MK800,000.00 for deformity after amputation of the leg, this court believes the sum of MKl,000,000.00 will adequately compensate the Plaintiff for the disfigurement he has t o live with. DISPOSAL The Plaintiff is therefore awarded MKS,000,000.00 for pain and suffering, MK3,000,000 for loss of amenities of life, MKl,000,000.00 for disfigurement and costs of the action (to be taxed if not agreed) . Compensation totals a global sum of MK9,000,000.00. Each party is at liberty to appeal to the Supreme Court of Appealwithin the requisite time frames. Ordered in Chambers on the .... 2J.~day of ........ J:~~ .. 2017 at Chichiri, Blantyre ASSISTANT REGISTRAR