Phiri & Others v Lilongwe City Council and 2 Others (Civil Cause 682 of 2017) [2021] MWHC 253 (13 December 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 682OF 2017 BETWEEN: LEONARD YANKHO PHIRI AND OTHERS CLAIMANTS AND LILONGWE CITY COUNCIL.......................................................... iST DEFENDANT LILONGWE WATER BOARD.....................................................................................................................2nd DEFENDANT MALAWI HOUSING CORPORATION......................................................................................................3rd DEFENDANT CORAM: A. P KAPASWICHE : ASSISTANT REGISTRAR (AR) Katundu/ Phombeya/ Singini : Counsel for the Claimant Songea Mzanda Kumwenda : For the 1st Defendant : For the 3rd Defendant : Court Clerk and Official Interpreter ORDER ON ASSESSMENT OF DAMAGES BACKGROUND Page 1 This court has been called upon to make a determination on a very unique case, probably the first of its kind in the Malawi's jurisprudence. The claimant's in the present case suffered a horrible experience; an experience that they would not want to remember but unfortunately, it is an experience that will never be erased in their minds. The facts of the case demonstrate a clear disregard of duty by service providers; a clear example of someone sleeping on the job. The unfortunate incident occurred between the night of the 17th to 18th day of July 2017 in Area 18; a location in the city of Lilongwe. A number of residents of this location used water which was contaminated with sewage and this is the genesis of the present matter. The Claimants commenced this action on the 5th day of September, 2017 claiming damages for breach of statutory duty and statutory consumer rights. The matter was heard on the 17th of August, 2020 and at the date of hearing, the Claim against the 2nd Defendant was withdrawn hence the claim remained against the 1st and the 3rd defendants. Following the hearing, judgment was entered for the claimants for damages and costs on the 9th day of September, 2020 by Justice Kenyatta Nyirenda. The matter came before me for assesment of damages. Hearing of the assesment of damages occurred on the 24th and 25th day of August 2021 where both parties paraded their witnesses after which both parties filled their submissions and proposed quantum of damages. In their prayer, the claimants prayed for a sum of MK6,5oo,ooo.oo per each claimant as adequate compensation. The 1st defendant counter-proposed a sum of MK500, 000.00 as compensation for those claimants that were most likely to be affected by the contamination while the rest of the claimants were put at MK200, 000.00. The 3rd defendant's proposal as contained in their filled quantum of damages was that each claimant should be compensated with a sum of MK1, 000,000.00. However, it would seem that the 3rd defendant changed their position in the final submissions as they stated that each claimant should be awarded damages ranging between MK50, 000.00 to MK100, 000.00 depending on the effort made to at least attach medical evidence to the claimed sickness. PRELIMINARY ISSUES Before I proceed to look at the evidence and analysis, I feel that there are preliminary issues that needs to be addressed with regard to the nature of assesment of damages proceedings. The High Court in Ngosi t/a Mzumbamzumba Enterprises v H Amosi Transport Co Ltd [1992] 15 MLR 370 (HC) set the basis for assessment of damages as follows: 'Assessment of damages......presupposes that damages have been proved. The only matter that remains is the amount or value of the damages.' Page 2 In the present case; my understanding is that my only duty at the moment is to determine the amount of compensation payable to the claimants with regard to the damages or suffering that they went through as a result of the negligence of the 1st and 3rd defendants. The fact that the claimants suffered damages was already settled through the Judgment dated 9th September 2020. Again, the 9th September Judgment found that the 1st and 3rd defendants are the ones liable to pay for the damages suffered by the claimants. The 1st defendant raised an argument in his final submissions to the effect that Lilongwe Water Board, who were the 2nd defendants and were withdrawn, were the ones that had 80% share of the blame and the court should deduct the 80% share of the award due to the fact that the claimants voluntarily withdrew the 2nd defendant from the proceedings. I do not agree with the reasoning of the 1st defendant as my view is that the Judgment is clear; the responsibility to compensate the claimants as far as this case is concerned is with the 1st and 3rd defendants. Had the Judge felt that there was another party to be added for purposes of paying the compensation then the court could have given appropriate directions. I must also state that most of the evidence from the two witnesses that testified on the part of the defendants was to the effect that the defendants were not to blame for the incident. In my view, these are issues that were supposed to be dealt with during the hearing before the Judge and not at this point. This is the time simply for this court to assess the extent of damage suffered by the claimants and the appropriate compensation. I would want to proceed by addressing the issue raised by Counsel for the 3rd defendant in her final submissions. I have to state that this issue came as a surprise as it was not expected that in final submissions such an issue will be raised. Before the actual hearing of the assesment proceedings; the defence had brought an application aimed at ascertaining the number of claimants to be awarded compensation in the present case. The application was based on the understanding that during assesment of damages; there were people that were not in the original list of claimants and they only appeared and filled witness statements during assesment of damages. My understanding is that by this time the defendants; in particular, the third defendant; had checked all the witness statements filled by the claimants and the only issue that they picked was the issue of additional names of claimants who only appeared during assesment of damages. In my ruling on the said issue, I held for the defendants and ordered that only claimants that were part of the original list of claimants when the summons were being filled should be compensated and that the additional names are not entitled. After the said ruling, we proceeded to agree that of the total number of claimants in the present case; the defence should choose a number of witness Page 3 that they intend to cross-examine and such witnesses will be the ones to testify on behalf of all the claimants. The defence did not raise any issues to do with the claimants at this point. We proceeded with examining 15 witnesses for the claimants that were chosen by the defence. After closing the case for the claimants; we examined two defence witnesses and we closed the trial. In the final submissions that the defence filled after being served with the final submissions from the claimants; the 3rd defendant now thought of bringing a completely new issue or objection that was never raised throughout the assesment hearing. Counsel Mzanda argued that there are claimants that did notfile witness statementsand others who died before the assesment and their witness statements were filled by relations without showing evidence that the said relations had obtained letters of administration entitling them to administer the deceased estate. This court will not bother to look at the merits of this argument as it is ill-timed and not brought in good faith. I do not know as to what point were the claimants supposed to respond to this argument when they had already done their last step of filling final submissions and I do not know as at what point did the 3rd defendant realised this. If the 3rd defendant had wanted the court to address this issue; it should have been raised earlier on at the time that the defence was raising the preliminary issue about the number of claimants to be allowed at assesment that this court dealt with. The defence also had a chance to raise the issue during hearing of the assesment proceedings and not wait until the time of final submissions. My award for damages in the present case will be in accordance with the list of original claimants as I have rejected the argument brought by the 3rd defendant at this point. As I said earlier on, when the matter came for hearing, an agreement was reached that a sample of 15 witnesses will testify orally. The defence paraded two witnesses. THE EVIDENCE CASE FOR THE CLAIMANTS CLAIMANTS FIRST WITNESS- REGINA KUMUKUMU Direct-Examination The first witness adopted her Witness Statement to be used as evidence during the assessment proceedings. She affirmed to be a resident of Area 18 at the material time of the incident giving rise to the cause of the action herein was occurring. Cross-Examination Page 4 The witness averred that it was on the 18th July,2017 at around 4 AM when she drunk the contaminated water. She did not confirm to have had any knowledge that the water had been closed at 4AM on the material day. She produced a medical report and the same was exhibited and marked “Pi” to establish proof that she got sick after drinking the contaminated water. She further testified to the Court that she had the receipts from the shop to establish the fact that following the occurrence of the incident giving rise to the cause of the action herein, she was constantly purchasing bottled water for consumption. Re-Examination She was asked to confirm to the Honourable Court on whether the water had been closed on a day prior to the incident. She testified that the water was closed on 17th day of July, 2017 and had started in the morning hours of 18th day of July,2017. CLAIMANTS SECOND WITNESS- CHARLES MAKHUZA Examination in Chief The witness adopted his Witness Statement to be used as evidence in the proceedings. It was well established that during the material time the incident giving rise to the cause herein was occurring, he was a resident of Area 18. He was residing together with his family. Cross-Examination In the witness was asked to confirm on the purchase of medicine from the drug store with reference to Paragraph 6 of his Witness Statement. He could not confirm the same. He was further asked why he never tendered any evidence to substantiate on the evidence that due to the occurrence of the incident, he was compelled to be purchasing bottled water for consumption. He established that he had lost the receipts due to passage of time. Re-Examination The witness was asked why he used to buy medicine. He told the court that because it was on or about 23rd day of July,2017 he was experiencing excruciating pains so he resorted to buy medicine from the nearest Drug Store. When asked why he was constantly buying bottled water for consumption from the shop, he tacitly indicated to the Court that it was due to the fear of drinking contaminated water he had for himself and his family members. He affirmed that it was on the 18th day of July,2017 that he drunk the alleged contaminated water. He was asked to clarify on his Medical Report as it was indicating that he went to the hospital on or about the 17th day of August, 2017, barely a month after the occurrence of the incident. He said he had fallen sick on that particular day Page 5 so he resorted to visit the hospital for better treatment. He was further asked to confirm to the Court whether the said Medical Report was not fished out for the sole purpose of tendering it to Court. He said that he was not even aware that the matter will come before court. THE CLAIMANTS THIRD WITNESS-KWAME BANDAWE Examination In-Chief The witness adopted his Witness Statement to be used as evidence in the proceedings. It was undeniably clear to the Court that the Witness was a resident of Area 18 and was residing with his family when the incident giving rise to the cause of action herein was occurring Cross-Examination The Witness was asked if he was aware that the Third Defendant had closed the supply of water on that material day. In his response, he alluded that he was not aware that Lilongwe Water Board had closed the water supply as water was still flowing in his house of course with less pressure. He was further asked to address the Court on the exact time he drunk the alleged contaminated water, he said it was on the 18th Day of July at around 6AM. He was asked to clarify on why the purported Medical Report was indicating to have been treated at Kamuzu Central Hospital whilst it was alleged in the statement that he treated at Area 18 Clinic in which the same hospital alleged no to have treated anyone with diarrhoea? It was his response that he was referred to Kamuzu Central Hospital by Area 18 Clinic for the purpose of securing a medical report. Re-Examination He was asked if he was aware that Area 18 Clinic claimed not to have treated anyone with diarrhoea. He negatively responded not to have had any awareness or knowledge of the same. The Witness was asked to address the Court on the question of who supplied water in his residual area. It was made clear apparent that the water was supplied by the Lilongwe Water Board and he further testified that his house usually receives water even in the event that water was closed. THE CLAIMANTS FOURTH WITNESS-DANIEL MAGALAS1 Examination In-Chief The Witness confirmed that the signature appearing at the end of the Witness Statement was his to the inclusion of the Medical Report that was attached thereto. The Witness adopted the Statement to be used as evidence in the proceedings Page 6 Cross-Examination The Witness was asked to clarify to the Court why his Medical Report was indicating to have been produced at Kamuzu Centra! Hospita! whilst it was alleged that he was treated at Area 18 Clinic. In his response, the Witness attested to the Court that he was referred by Area 18 Clinic to meet with Doctor Charles for treatment. The Witness was asked whether he was aware of any Task Force Report. He affirmed to have the awareness of the said Task Force Report but declined to have knowledge of the same in details. He was asked to clarify to the Court why another Attachment of a Health Passport was not indicating a Medical Stamp attesting that there were indeed treated at the said medical facility. It was his testimony in reply to his question that he indicated that the Stamp was faded and presented to the Court a Stamped original copy of the Health Passport. He was further asked whether he was aware that the Task Force Report that published is the only rationale for the refusal of issuing a Medical Report. He refused to have such knowledge. The Witness was then asked if he was aware that the document which he had tendered to the Court was not commissioned. He affirmatively responded to the question, saying he was aware that the copies were not commissioned. Re-Examination The Witness was asked to tell the Court which hospital he went to for treatment after drinking the contaminated water. It came to light in his response that he went to Kachi Clinic for treatment. He was then asked whether he was in possession of the original document to the extent that he can produce it to the Court. He said yes, he could produce the original one. THE CLAIMANTS FIFTH WITNESS-HARRY PATEL Direct-Examination The witness attested that his name is Harry Patel, residing in Area 18. He confirmed the signature at the back of the Witness Statement was his and he adopted the Statement to be used as evidence in the proceedings Cross-Examination The Witness was questioned in reference to Paragraph 4 of his Witness Statement; whether he was aware that the water supply had been closed at the material time he alleged to have taken up to drink the water. He responded to have not known that the water supply was cut at the material time Page 7 He was also asked why he did not tender any Medical Report to substantiate on the point that he went to a private clinic for treatment as alleged in the Statement. He established that he had inadvertently forgotten to bring but assured the Court that he can bring it in the event he is ordered to do so. The Witness was further asked if he aware that he had tendered a Health Passport instead of a Medical Report and the same had no stamp to indicate that it was a certified copy. In response to this question, the Witness indicated that he referred the Health Passport as a Medical Report having consideration to the fact that it was the only official medical document that was issued to him by the Medical personnel giving an overview of his sickness. On the issue of certification, he indicated that he was unable to know anything about certification. He was asked if he is in possession of the Original copy of his Health Passport. He affirmatively replied to have the Original Copy of the purported Medical Report. He was also asked to confirm to the Court that there were only three pages from his Health Passport and why so. He said that he had captured the relevant pages under consideration. Following the above reply, the Witness was asked whether he was in a position to explain what was on the Health Passport and when such recordings were written on the said Health Passport. It was his testimony in relation to this question that he was in a position to explain what the Health Passport was reflecting and such recordings were written on the 18th day of July, 2017. He was also asked in reference to Paragraph 5 of his Witness Statement which indicated that he fell ill on the 19th day of July, 2017. In reply he affirmed that he fell ill on the 18th day of July 2017. Re-Examination The Witness was asked to address the Court on his understanding of whatever was written in his Health Passport. He said it was just a report giving account of the exact details of the Hlness/sickness being complained of. When asked to tell the Court the exact day he had fallen ill, the Witness affirmed to have fallen ill on the 18th Day of July,2017. He was further asked to furnish reasons why they were variations of dates. In his response he said that he fell ill on the 18th day of July, 2017 and the variations were entirely attributed to a typing error or flow. Direct-Examination THE CLAIMANTS SIXTH WITNESS-MARY KALIATI Page 8 The Witness testified to be a resident of Areai8, residing in a Malawi Housing Corporation house. She confirmed to have remembered that she gave the Statement as evidence and that the signature at the back of the Statement was hers. The Witness adopted to use the Statement as evidence in the proceedings. Cross-Examination She was asked as to who owns the house that she resides in. it was her evidence in response to this question that the House belongs to the Third Defendant Malawi Housing Corporation. She was also asked to address the Court how many bedrooms the house has. She said the house has a single bedroom. She was again asked if al! the 17 occupants of the house were sleeping together in that one bedroom. She confirmed that all occupants were sleeping in the house. She was asked if she was aware that it's a punishable offence to be lying or furnishing false information to the Court. She confirmed to have knowledge of that fact. She also confirmed to have indicated that she attached a Medical Report in her Statement only that the attachment to substantiate her evidence on the same was missing from the copy that the Defendants were served. Cross-Examination The Witness was asked to address the Court the number of members who were living in her household. In her response she pointed out that they stay 8 people. She was then asked as to how all 8 people manage to stay in a one-bedroom house. It was her evidence that she and her husband sleep in the bedroom and the rest of the children manage on the double beds that are stationed in the living room. She was also asked if she could produce the missing Medical Report. She affirmed to be able to produce it if requested to do so. She was then asked to confirm whether she was aware that the water supply was closed on the material day of the incident. It was her testimony that she had no such knowledge since the water was still flowing in her house with relatively low pressure. She further testified that the water had only stopped the previous day and by next morning the water supply had resumed. Direct-Examination THE CLAIMANTS SEVENTH W1TNESS-CYTON ALIKETI The Witness affirmed to have been a resident of Area 18 at the materia! time the incident giving rise to the cause of action herein was occurring. He further attested that the Third Defendant is the Landlord of the house he was staying. He confirmed to be the Author of the Statement and the same was signed by himself. He unequivocally adopted the Statement to be used as evidence in the Page 9 proceedings. He also identified the attachments that were annexed to her Statement as Medical Reports that were issued to him at Kamuzu Central Hospital. Cross-Examination He confirmed that the attached documents were not authored by Area 18 Clinic and that there was no name on the attachment of the Medical Report. The Witness was also requested to confirm that there was no authentication/certification of the documents attached to his statement. He declined to confirm on this, contending that the ones he has collected from Kamuzu Central Hospital were certified. It was his testimony with reference to Paragraph 13 of his Statement that he admitted to have claimed for damages on behalf of his children who were not listed in the Statement of Claim. Re-Examination He was asked to explain why the attachment was not showing his name, in his response, he established that his name was appearing on the original copies. He was then questioned to clarify to the Court why his Medical Report was not stamped and it was his evidence in responding to this query that the Medical Report that was attached to the Statement was inadvertently not stamped but the original one was stamped at Kamuzu Central Hospital. The Witness was finally asked to address the Court on a question of whether Kamuzu Central Hospital is a public or a private hospital, it was his testimony that Kamuzu Central Hospital is a public hospital. Direct-Examination THE CLAIMANTS EIGHTH WITNESS-CHRISTIE BANDA She established that she resides in Area 18 and the material time the incident giving rise to the cause of action herein was occurring she was still a resident. She confirmed that the signature at the back of the Statement was hers and she adopted the same to be used as evidence during the Assessment proceedings. Cross-Examination She confirmed that the documents attached to her Witness Statement did not bear her name. She was asked to confirm with reference to Paragraph 5 of her Witness Statement that she indicated that it took several days before the Second Defendant (Lilongwe Water Board) started providing water to the residents of Areai8 which contradicts with what other Claimants had said. She confirmed that her evidence viz a viz Paragraph 5 was presenting a contradictory piece of evidence to what most Claimants had alleged on account that it took several days before she should access water that Lilongwe Water Board was providing through water bourses. In response to why she did not attach Page 10 a Medical Report from Deayang Hospital, the Witness testified that the attached Medical Statement had a stamp from Deayang Hospital. The Witness was further questioned as to whether she was in a position to interpret to the Court what was written on the Medical Report in relation to the alleged illness. She affirmatively responded to this question but failed to explain any apparent connection between the sickness and the swelling of the ear. Re-Examination The Witness was questioned to address the Court on how long it took for Lilongwe Water Board to start providing her household with water. It was her testimony regarding this question that it never took long before the Second Defendant started providing water through water boozers that were stopping at a particular point for easy access of the many people residing within the Area 18 locality, it was further her testimony that what necessitated her visit to Deayang Hospital were the allergies that she had and the Doctor advised her that the allergies were attributed to the act of drinking contaminated water. THE CLAIMANTS NINTH WITNESS-JANET CHIBAYO Direct-Examination The Witness made it clear to the Court that she was a resident of Area 18 at the material time the incident giving rise to the cause of this action was happening. The Witness confirmed to be the one who signed at the end of the Statement and virtue of that reason; she adopted the Statement to be used as evidence in the proceedings. Cross-Examination The Witness was asked to confirm to the Honourable Court with reference to Paragraph 9 of her Statement on the Hospital she went to receive treatment between Area 18 Health Clinic and Area 18 Private Clinic. She confirmed to have gone to Area 18 Health Centre for her treatment following the consumption of the contaminated water; she then went to the Pharmacy. The Witness declined to have any knowledge and awareness on the institution of an inquiry Committee (Task Force) on the matter by the then State President Professor Peter Mutharika. She also declined to have any awareness that it was on record of the Court that there were no patients treated with diarrhoea at the said hospital. Similarly, she negatively responded to the question of whether she aware that Area 18 Health Centre had treated three diarrhoea patients from somewhere. It was further her evidence that she testified to the Court that she did not bring or attach any evidence to substantiate on the assertion of Page 11 purchasing drugs from the Drug Store as a result of drinking the contaminated water that made her suffer from diarrhoea. No evidence was also attached to support her claim of loss of business under Paragraph 9 of her Witness Statement. Re-Examination It was the Witness’ testimony that she tacitly indicated to the Court that she was never issued with any receipts from the shop she constantly used to buy bottled water for her consumption. When asked to bring to the attention of the Court the type of business she was running and how that business was substantially affected by the occurrence of the incident giving rise to the cause of action herein, she testified that she was selling cooked food (rice, nsima and a variety of relish) at Kanengo and when news broke that Area 18 had received contaminated water, customers became unwilling to buy her food for fear of eating human faeces as the news that was widespread speculated. THE CLAIMANTS TENTH WITNESS-RHODA KANSAWA Direct-Examination The Witness testified that she was a resident of Area 18 during the time the incident bringing the cause of action herein was occurring. She confirmed to the Court that the signature at the back of. the Statement was hers and she adopted the Statement to be used in evidence in the proceedings. Cross-Examination She gave testimony that on the material day of the occurrence of the incident she had just arrived from Blantyre at around 9AM and there was her cousin in the house when she was arriving. Upon arriving inside her house, she perceived a very bad odour that had engulfed all the rooms in the house. She declined to have drunk the contaminated water but had consumed food that was prepared by her cousin that very morning. THE CLAIMANTS ELEVENTH WITNESS-JACQUELINE COMFORT LIABUNYA Direct-Examination It was the Witness’ testimony that she was residing in Area i8with her family during the material time the incident bringing to the cause of action herein was occurring. The Witness attested to be the author of the Witness Statement and she adopted the same to be used as evidence in the proceedings Cross-Examination Page 12 The Witness confirmed with reference to Paragraph 12 of her statement that the evidence she presented was essentially supportive to the assertion that she went to Area 43 MASM Clinic after she had drunk the contaminated water. THE CLAIMANTS TWELVETH WITNESS-AUBREY KANYAMA Direct-Examination He confirmed to have been residing in Area 18, House Number 171 with his family during the material time the incident bringing to the cause of action herein was occurring. He also confirmed to have been the author of the Statement and he adopted the same as evidence in the proceedings. Cross-Exa mi n ation The Witness testified to the Court that he confirms with reference to Paragraph 3 of his Witness Statement that the date of the incident was 17th day of July,2017 and he tacitly admitted to have the aware that the incident occurred on 18th day of July,2017. With reference to Paragraph 4 of his Statement, the Witness was asked to give the Court the exact meaning of Black-tar sewage material and it was his testimony that it was the only word that came to his mind upon noticing that the water was coming out stinky with a very bad colour and had a mixture of particles that appeared like human faeces. It was further pointed out clearly to the Court by the Witness that he did not adduce any concrete evidence to substantiate on his assertion that he was spending an average amount of MK3 000.00 (Malawi Kwacha Three Thousand Only). Re-Examination The Witness confirmed that the incident of contamination occurred on the 18th day of July,2017. He was asked to address the Court with reference to Paragraph 3 of his Statement on what he intended to communicate as there is no such thing as black-tar sewage and in his response, it was made apparent that he wrongly used that word probably due to lack of knowledge, but in essence he intended to mean that the water was very contaminated and it was producing a very unpleasant smell similar to that of a sewage. It was the only word that popped in his mind to rightly describe the contaminated water. He further confirmed that he had not attached any Medical Report and receipts to support his assertion that he went to the hospital and spent considerable amount purchasing bottled water. THE CLAIMANTS THIRTEENTH WITNESS-MWAYIWAWO Direct-Examination Page 13 The Witness established that she resides in Area 18 and was still a resident of the locality when the incident giving rise to the cause of action herein was occurring. She also confirmed that the signature at the back of the Statement was hers and she adopted the Statement to be used as evidence during Assessment Proceedings. Cross-Examination In her testimony the Witness stated that she was not aware that the Second Defendant had closed the water supply on the day of the alleged incident because water was still flowing in taps even though the flow of the water was relatively with less pressure. She also confirmed to have drunk the contaminated water on the material day of the incident. The Witness declined to have fallen ill following consumption of the contaminated water. THE CLAIMANTS FOURTEENTH WITNESS-MIKE KAWAYE Direct-Examination The Witness confirmed to residing in Area 18 House Number 171 with his family during the material time the incident bringing to cause of action herein was occurring. He also confirmed to have been the author of the Statement and he adopted the same as evidence in the proceedings. Cross-Examination The Witness was asked to address the Court with regards to the attached document whom he was referring to at the end of his statement and it was his testimony in response to this question that he referred to the extract of his daughter Sandra's Health Passport. When asked which hospital he went to, he testified that he went to Kachi Private Clinic. It was his testimony that the purported Medical Report was issued at Kamuzu Central Hospital because he was referred there for collection of said Medical Report by Kachi Private Clinic. Re-Examination It was his testimony that he attached the Medical Report even though he was not treated at any hospital following consumption of the contaminated water. The Medical Report was attached to his Statement in respect of his daughter who has suffered diahorrea after drinking the contaminated water. It was his testimony further that he confirmed to the Court that he did not attach any document or proof to substantiate on the assertion that as a result of the incident, he incurred expenses through regular purchase of bottled water. CASE FOR THE DEFENCE Page 14 THE DEFENDANTS FIRST WITNESS: PHYUS GEORGE MKWEZALAMBA Direct-Examination The Witness told the Court that he was a Chief Engineer working with Lilongwe City Council. He adopted his Witness Statement to be used as evidence in the proceedings Cross-Examination He confirmed to the Honourable Court that he came to this Court as employee of Lilongwe City Council. He further confirmed that the contamination posed a health risk to the residents of Lilongwe City generally, specifically residents of Area 18. He further confirmed to this Court that he did not provide any scientific proof for his assertions as stated in paragraph 15 of his Witness Statement. When asked whether he had provided proof of his assertions in Paragraph 16 of his Statement, he confirmed to the Court that he did not. He further confirmed to this Court that in Paragraph 14 he was merely reporting what the Second Defendants had done. When asked whether he was an expert, he responded in the affirmative. When asked whether he had provided proof for his sweeping statements made in Paragraph 17 and 18 of his Witness Statement, he responded in the negative. When asked whether he had examined the lay out of the water pipe that broke and let in contaminated water to determine the households that would be supplied by the said contaminated water, he affirmatively responded. However, when he was asked by this Honourable Court to verify that he did not provide evidence or method in his Witness Statement used to make such permutations. He affirmatively responded. When asked to confirm contents of Paragraph 3 where he stated that he had made his Witness Statement from his personal knowledge gathered in the course of his work with the First Defendant, he affirmatively responded. When asked to verify the actual date that the ordeal happened in reference to his Witness Statement where it was not stated it was established that the Witness did not know the actual date of the ordeal. When asked to confirm that he did not provide the actual date that he visited the site, he affirmatively responded. When asked to confirm to the Honourable Court that he did not specifically state the actual date that he and his team stopped the flow of the sewer waster, he affirmatively responded. When asked to confirm to the Honourable Court what had already been stated by the Second Defendant that is the excavating the area near the road to expose the broken water pipes, he affirmatively responded. When asked to confirm that the Second Defendants did not provide any evidence on their part for the above, he affirmatively responded. When asked whether he was aware that the Second Page 15 Defendants had failed to provide evidence that they had closed the water supply despite his Witness Statement on Paragraph 13 alleged that the water supply was closed by Second Defendant, he responded in the affirmative. He was further asked to confirm that he had not provided any evidence for such a claim as stated in Paragraph 13, he responded affirmatively. When asked about a sweeping statement he had made in Paragraph 17 of his Witness Statement but had failed to adduce any evidence to substantiate the allegation, he affirmatively responded. When asked if he had provided any pictorial evidence to help the Court to appreciate the burst pipes as he had alleged, he responded that he did not provide the same. THE DEFENDANTS SECOND WITNESS: DUM1SANI KUYEWAWA Direct-Examination The Witness told the Court that he is a Clinical Officer working with Lilongwe City Council. He adopted his Witness Statement to be used as evidence in the proceedings Cross-Examination When asked if he had conducted interviews with the Claimants. He negatively responded. When asked if he had authored the report that is being relied on in his Witness Statement. He negatively responded. When asked to confirm if the report was independently made. He confirmed but stated that there is an explanation for it. When asked if he is employed by the First Defendant, he affirmatively responded. When asked if he was appearing before Court as an employee and not an Expert, he responded that he is appearing as an Expert When asked whether the Witness Statement is gathered from his personal knowledge and not as part of his expertise as a Clinical Officer, he responded affirmatively. When asked if from Paragraphs 6, 7, 8 and 9 of his Witness Statement he was making opinions on water borne diseases, he responded affirmatively. When asked about the incubation period varying from hours to days, as an expert was it then concluded that he was not being specific, he responded in the affirmative. When asked if the incubation period is then not uniform but relative, he affirmatively responded. When asked regarding Paragraph 7 of his Statement where in most cases, the incubation period is within a few hours, whether it is a matter of fact or an opinion on his part, he responded that it was a matter of fact. When asked if when he says it is a matter of fact, had he adduced any evidence to establish it to the Court or must the Court take his word for it on a scientific matter, he negatively responded. When asked if in his line of work, he conducted examinations at Lilongwe City Council with reference to Paragraph 3 of his Statement. He responded in the negative. Page 16 When asked if in his line of work at the Lilongwe City Council he diagnosed people to determine if they have a waterborne disease. He responded in the negative. When asked if he was a Lab Technician or a Lab Expert, he responded that he is not a Lab Technician. When asked if they are Lab Technicians at Lilongwe City Council, he affirmatively responded. When asked if what he has stated in Paragraph 9 is a fact or an opinion by him. He responded that it is an opinion that must be noted as a fact. When asked to then produce evidence to the Honourable Court on the same, he responded that he cannot be able to produce evidence. When asked regarding Paragraphs 18,19,20 and 21 where he had made a number of sweeping statements where he had relied on Paragraph 3, would it be a fair point to say the observations were made from his personal knowledge as an Environmental Health Officer for Lilongwe City Council. He affirmatively responded. When asked if it is not from his knowledge as a qualified Medical Practitioner from an independent institution, he affirmatively responded. Re-Examination it was established that the tests were done immediately after the incident, page 26 of “D K1”. When asked why he had not interviewed the Claimants. He responded that after examining their medical records he thought that would be enough. When asked if he was simply making a conclusion and that he must share his basis with the Court. He responded that after going through the medical records he thought that would be enough. BURDEN AND STANDARD OF PROOF The burden of proof lies on the on the one who asserts in the affirmative, this being a civil matter and in this case burden is on the claimants. The standard of proof required is proof on a balance of probabilities, which is lower than in criminal cases where the state is expected to prove the elements of the offence beyond reasonable doubt. THE LAW ON DAMAGES Assessment of damages is provided for under Order 12 Rule 19 of the Courts (High Court) (Civil Procedure) Rules of 2017. It provides as follows; ORDER 12 RULE 19 - ASSESSMENT OF DAMAGES (1) The Court shall conduct the assessment of the amount of damages in the same way as a trial. Page 17 (2) The Court may give directions about: - (a) the procedure to be followed before the assessment takes place; (b) disclosure of information and documents; (c) filing of statements of the case; and (d) the conduct of the assessment generally. (3) After damages have been assessed, the claimant shall enter judgment setting out the amount of damages and, unless the defendant was present when the damages were assessed, serve a copy of the judgment on the defendant. GENERAL LAW ON ASSESSMENT OF DAMAGES The cardinal principle in awarding damages is 'restitutio in integrum* which means, in so far as money can do it, the law will endeavour to place the injured person in the same situation as he was before the injury was sustained - Halsbury's Laws of England 3rd Ed. Vol. II p. 233 para 400. Also see Elida Bello v Prime Insurance Co. Ltd (Civil Cause No. 177 of 2012 (unreported)). The function of an award of damages in a civil justice system is to compensate the claimant for a wrong done to him. The wrong may consist of a breach of contract, or a tort, or an interference with some right of the claimant under public law. But whatever the wrong may consist of the award of damages should be compensatory in its intent. Kuddus (Ap) (Appellants) v. Chief Constable of Leicestershire Constabulary (Respondent), 7 June 2001 [2001] UKHL 29 In assessing damages of any kind, Courts must have regard to cases of comparable nature in order to award damages consistently but without losing sight of the injuries suffered by the Claimant. See Chidule vs. Medi, MSCA Civil Appeal Number 12 of 1993. But, even in the face of difficulties in assessing damages, the Plaintiff is not disentitled to compensation See; Mdumuka v Mphande (HC) 7 MLR 425. The Consumer Protection Act is instructive and provides an overarching governing principle when assessing damages for a case like the present one. The present matter deals with breach of statutory duty. With regards to the requisite damages for breach of statutory duty, Section 3 (d) of the Consumer Protection Act provides as follows; 3 Consumers shall be entitled to the following rights- Page 18 (d) Eull-timely, adequate and prompt compensation for damages suffered by a consumer which, pursuant to the provisions of this Act or any other written law or other special or general contractual obligations, are attributed to a supplier or trader; ANALYSIS OF THE LAW AND EVIDENCE I should start my analysis of the law and evidence by thanking the parties for well-articulated submissions of their understanding in supporting of their positions on the present matter. I would also want to repeat my observations that the present matter is a unique matter in our jurisdiction. In assesment of damages; the usual approach by courts is to look at precedents in relation to cases of similar nature. This approach is not applicable in the present matter as there are no precedents owing to the uniqueness of the present matter, it is not surprising that both parties did not cite any precedents in their submissions that should help this court in making a determination apart from just making their proposals on the amounts that they deem reasonable. In assessing damages of any kind, Courts must have regard to cases of comparable nature in order to award damages consistently but without losing sight of the injuries suffered by the Claimant. See Chidule vs. Medi, MSCA Civil Appeal Number 12 of 1993. But, even in the face of difficulties in assessing damages, the Plaintiff is not disentitled to compensation See; Mdumuka v Mphande (HC) 7 MLR 425. As I indicated earlier on, the present matter is novel in our jurisdiction and this may present difficulties when it comes to comparable cases. The Consumer Protection Act is instructive and provides an overarching governing principle when assessing damages for a case like the present one. The present matter deals with breach of statutory duty. With regards to the requisite damages for breach of statutory duty, Section 3 (d) of the Consumer Protection Act provides as follows; 3 Consumers shall be entitled to the following rights— (d) Full, timely, adequate and prompt compensation for damages suffered by a consumer which, pursuant to the provisions of this Act or any other written law or other special or general contractual obligations, are attributed to a supplier or trader; It was argued by the claimants that in the present matter, they suffered both pecuniary and non- pecuniary losses. Others expended money on medical bills and procurement of water for their use. Additionally, various Claimants have also submitted that the water bill following the spillage was exorbitantly high. It was also argued that evidence shows that the various claimants suffered shock, anxiety and that they continue to suffer from the effects of the spillage as they, now and again think that the water may be contaminated. In assessing damages, and on the principle of the Elida Bello Page 19 case (supra), the Court must compensate the Claimants as nearly as possible as money can do it taking into consideration the circumstances of the case. In her elaborate submissions, Counsel for the 3rd defendant gave an account on the proper categorisation of the claimants for purposes of determining the appropriate compensation. The categorisation and arguments all led to the conclusion that the claimants need to be given nominal compensation. This was also the position taken by Counsel for the 1st defendant in his final submissions. The first category of claimants was the category that I already dealt with of those that did not allegedly file witness statements. The other two categories are the one that filled statements without attaching documentary evidence like receipts and medical reports and those that included the documentary evidence. In the first category; there are claimants that did not suffer any sickness after using the contaminated water and they did not make any claim on expenditure related to purchase of drugs and bottled water or general medical expenses. It was submitted that claims of expenditure do fall in the category of special damages hence they need to be proved and not just alleged. There is a category of claimants that endeavoured to attach medical documents to support the claims made in their witness statements. These were best categorised into three groups. The first group is the one that attached health passport pages without any indication of the name of the owner of the health passport book. It was rightly, observed that this makes it very difficult for this court to believe the ownership of the said health passport book as it does not bear the details of a particular claimant. The second category is for those that presented the health passport books but the information in the said books is only a mere listing of ailments suffered by the claimants on the particular day without any explanation by a medical personnel as to whether there is any linkage between the ailments and consumption of the contaminated water. This brings problems in deducing whether the claimed ailments are a result of the water contamination. The third category of the reports is related to the second one. It is about medical reports that were mere laboratory results without any explanation of how the findings were related to the water contamination. A number of medical reports also just recorded the history of what the claimant just described to the medical officer without any indication of any examination done by the hospital to relate the aliments complained for and the consumption of the contaminated water. It was also rightly observed that the tendered medical documents were not certified as true copies of the original as required under Section 3 (3) of the Authentication of Documents Act. In their Page 20 current unauthenticated state; it is unlawful for this court to use them as the basis of making an award of compensation. As I did indicate earlier on, the result of this analysis is not to say that the court will not make an award. The Judgment on liability found that the defendants were liable to compensate the claimants and the duty of this court was simply to assess the quantum of damages payable to the claimants. The oral evidence given by the claimants and the various reports that followed the incident proves before this court that there was indeed some sought of suffering on the part of the claimants that needs compensation. This suffering was a result of breach of statutory duty on the part of the defendants. The claimants argued that they suffered shock, anxiety and that they continue to suffer from the effects of the spillage as they, now and again think that the water may be contaminated. The 3rd defendant and indeed the 1st defendants invited this court to disregard these claims on the basis that there is no medical evidence to corroborate claims for mental or psychological suffering. Having fully appreciated the circumstances of the present case, I am unable to agree with the defendants. Trauma or mental anguish can still be proved even in the absence of a medical report. The test for trauma in events where medical examination was not done and medical report is not available is the Test of Probability as was stated in TK v. Mota Engil, Personal Injury Cause Number 576 of 2017 (High Court) Principal Registry, (Unreported) @ paragraph 86 which stated as follows; ‘The psychological trauma that the claimant suffered herein, though not analyzed by a psychiatric medical practitioner, appears more probable than not in this Court's view to have caused the claimant psychiatric injury'. The present matter involved the claimants using water that was contaminated by sewage. This is a horrible experience that the claimants would not forget. It is one of the worst experiences in one's life and any reasonable person would agree with this court that it is just reasonable that one would experience trauma out of this experience. One can actually get sick by the mere realisation of having drunk or used water that is contaminated by human faecal matter. It is very surprising that the defendants would be treating this as a small matter and go on to proposal compensations ranging between MK50, 000.00 to MK500, 000.00. The proposals made by the defendants are, to say the least, a mockery to the claimants and the general public as the said amount cannot even stand anywhere closer to bringing the claimants to the situation that they were before the damage was suffered. As I have stated time and again in this ruling; the mere thought of one drinking or using water mixed with sewage; to be more precise; human faeces is one of the most disgusting experiences one would Page 21 have on this earth. The defendants will have to understand that they offer critical services that affects the general health and welfare of Malawians and failure to discharge their duties accordingly has catastrophic results on the general public. 1 have also examined the proposal from the claimants as they prayed for a compensation sum of MK6,soo,ooo.oo per each claimant. I find the proposal to be on the higher side despite the fact that the value of our currency is in tatters in the present era. I would also want to repeat my earlier observations that the Judgment entered before this court found the 1st and 3rd defendants liable and the Judgment did not talk of Lilongwe Water Board having been in the wrong or being liable to compensate the claimants. The defendant's tactic of trying to run away from responsibility when the judgment points at them will not in any way help them. Again, the judgment of the court did not provide that between the two defendants one is more liable than the other to warrant a finding that one party has to pay more compensation than the other hence the arguments made by the 1st defendant in that regard does not have a basis. FINDING In view of the above discussion, this court is of the view that a sum of Ml<4,2oo,ooo.oo is sufficient recompense to each of the claimants. Judgment is accordingly entered in favour of the claimants in the sum of MK4,200,0000.00 for each claimant. The list of the claimants in the present case has a total of 325 individuals and the total compensation payable is MK1,365,000,000.00 to be shared equally between the 1st and 3rd defendants. The claimants are further awarded costs for this assesment. Either party aggrieved by this order of assessment has the right of appeal to the Supreme Court of Appeal within 3odays. RIGHT OF APPEAL MADE IN CHAMBERS T’ TH DAY OF DECEMBER 2021 ANTHO IZANI KAPASWICHE ASSISTANT REGISTRAR Page 22