Chilundu v Chilumba & Anor. (Personal Injury 1005 of 2014) [2017] MWHC 98 (12 May 2017)

Triplicate IN THE HIGH COURT PRINCIPAL REGISTRY INJURY CAUSE NO. 1005 OF 2014 OF MALAWI PERSONAL BETWEEN PETER CHILUNDU (Suing on his own behalf James Kamowa, Deceased) AND EDWIN CHILUMBA REUNION INSURANCE COMP ANY LIMITED and on behalf of PLAINTIFF 18T DEFENDANT ND DEFENDANT CORAM MATAPA KACHECHE Chikaonda Alide Ngoma Registrar Assistant for the Plaintiffs for the Defendants Official Interpreter ORDER ON ASSESSMENT OF DAMAGES 1. The plaintiff commenced' this action claiming damages the death of James Kamowa who died of life and for loss of expectation s he of injurie when a motor vehicle, Registration number BP 6488, Toyota Hiace minibus following loss of dependency suffered driven Church junction. by the first defendant The accident and insured was attributed by the second defendant to the negligence of the first defendant. hit him near Chigumula 2. A judgment on 3151 October damages. represented testimony in default of notice of intention 2014. On 3rd December, by adopting testified against to defend was entered 2015 the matter came for assessment his witness the defendants of were the plaintiffs As it stands therefore The defendants statement. but did not parade any witnesses. The plaintiff went unchallenged. 3. It was testified that at the time of his death the deceased was 70 years old and was working as a guard and a farmer. There was no evidence of his earnings though. 4. Under section 3 of the Statute of a person is caused by the negligence action the benefit of Section the wife, husband, for damages. 4( 1) of the same Act provides and child of the person Law (Miscellaneous of another, parent that such action person is liable shall be for whose death has been so Provisions) the negligent Act, whenever the death to an ..,� .... ,,.u,..,_, __ ·'. "i \ ---· '· f - .. �,-........... .,. .. J H f (J }-! r: t-, , t ;·-:_:··" f I -.... I f;l H P. i.:.: \f � 4 __ � - Triplicate In other words the deceased person's dependants for loss of are compensated caused. dependency. 5. I will tackle t claim for' loss of life is maintainable o n behalf of the loss of he claim for l principle is that a expectation of life first. The genera deceased. It is based on the notion as when she was in good health- Benham v Gambling [1941]1All suffered; the deceased that due to the injuries same extent Damages under this head cannot be quantified common sense and reference assigning actual value to the years lost. to awards of similar would not have enjoyed his or her life to the ER 7. As such Courts use in monetary terms. nature to award these damages without 6. Consideration vicissitudes accident Viscount of life. In Benham v Gambling Simon LC said [1941] is had on the victim's age and prospects in considering in life; allowance is given to the of the the age of the victim 1 All ER at page 12: The age of the individual may, in some cases, of length of days, but the prospect of a be a relevant in extreme old age the brevity as it seems to me, arithmetical of what life may be left may be are to be avoided, calculations if only to know how many years may have been lost happy life. ... the thing to be valued is not the prospect predominantly factor-for example, relevant-but, for the reason that it is of no assistance unless for this purpose, shortening quantitative and pleasures-and estimate. not be calculated of it calls of compensation, basis. The ups and downs of life, that makes up 'life's In assessing solely, or even mainly, fitful damages for shortening to be paid to the deceased's its pains and sorrows fever'-have of life, therefore, to be allowed for in the as well as its joys such damages should of life which is lost." on the basis of the length one knows how to put a value on the years. It would be fallacious that all human life is continuously an enjoyable thing, to assume, so that the estate, on a 7. The other head of damages is loss of dependency. the value of the dependency, This is a pecuniary loss and the Court or the amount expect to have received annual figure could reasonably by taking the present from This amount is calculated from money or goods provided or services which, while based upon the number of years that the rendered, method for assessing a particular has evolved benefit that the dependant of pecuniary in the future. the deceased whether of dependency, it by a figure and multiplying dependency might reasonably that a lump sum is being given now instead Para 1557. McGregor 15th Edition. on Damages, be expected stemming to last, is discounted so as to allow for the fact over the years. See of periodical payments 8. Lord Pearson set it out concisely in Taylor -vs. -O'Connor [1971] AC 115 at 140. He said: namely; in the normal calculation, i.e. the sums which the deceased estimate "There are three stages of earnings, the fatal accident; (ii)To the dependants express (iii)to choose the appropriate the lost benefit, would have derived multiplier probably the lost benefit as an annual sum of the period (i) to estimate the loss probably would have earned but for i.e. the pecuniary benefit which from the lost earning, and to and of the lost earnings; which, when applied to the lost benefit Triplicate expressed sum." as an annual sum, gives the amount of the damages which is a lump 9. The decea sed herein was a farmer a nd was employed as a g to his earnings. In such a c earnings I will use a 24 day month as the unit of calculation K687.70 per day as the deceased's dependency. for purposes uard. There was no evidence as of loss of of calculation ase the court ought to use the statutory minimum wage 10. The deceased was 70 years of age. He had already Nevertheless dependency. circumst from his activities We cannot tell how long the deceased the dependants expected ances I adopt the suggestion by the plaintiff could have lived. In the that we use four as the multiplier. age. passed normal retirement of in terms to benefit something 11. The dependants are expected to benefit their dependency. comes to K528, 153.60. There are therefore % of the deceased's to K687.70 earnings as the amount of x 24 x 12 x 4 x %. The total entitled 12.·on the loss of expectation of life it is clear that the deceased was energetic and there is no suggestion difficult that he was suffering from any ailment or that he was facing some particularly life making his life less pleasurable. I award Kl, 000, 000.00 on this head. 13. I also award K3, 000.00 cost of procuring police report. 14. The total award comes to Kl,531, 153.60 15. I also award costs of these proceedings this Made in Chambers day of May CC Matapa Kacheche ASSISTANT REGISTRAR