Manjolo v Attorney General and Sibale (Civil Cause 59 of 1989) [1992] MWHC 9 (16 May 1992)

1 IN THE HIGH COUNT OK MALAWI. co. PRINCIPAL REG I STRY CIVIL CAUSE NUMBER 59 OE 1989 BETWEEN: WILLARD AMOS MAN. JOLO PLAINT! EE and THE ATTORNEY GENERAL, and RAB5ON SIBALE ......... DE!’END A NT Coram : D F MWAIJNGULU, REGISTRAR OF THE HIGH COURT Asani, Counsel for the Plaintiff Counsel for the 1st Defendant absent Counsel for the 2nd Defendant absent 0 R D E R This is an action for damages fol Lowing injuries sustained on the 15th of February 1986 when Rabson Sibale, a driver employed by the 1st defendant stopped abruptly. The plaintiff, a passenger in that motor vehicle, sustained a deep cut, 6 cms wide and d cm deep on the left, upper eyebrow. The plaintiff was rushed to the hospital where he was treated for the injuries. Subsequently, he experienced loss of vision. He went to the hospital again. It was confirmed that he was loosing sight in one eye. Later loss of vision in the other eye was detected. The plaintiff never wore glasses before. He has to now. At the time of the accident, the plaintiff was a Senior Executive Officer in the Ministry of Women and Children Affairs and Community Services. Before the salary revision, he was earning K5688 per annum. He is now 37 years old. The plaintiff's job involves a great deal of travelling. He uses a motor bike to travel to different places in Kasungu District. With loss of vision, he has been advised to reduce the use of a motor bike. He has for the most part to [ go by publ ic Welfare Officer he is! As a Social involved i des titution for .cross clients, child care matters, ma t rimonial the request of the parties, transport. relief of family and issues at resolving! probation! extensive operating. his fitnes juvenile finances tc travelling in the This involves! which he isl The direct consequence of the 'injuries is that- name a few A district in has been severely reduced. V I 1 2/ . . . 4* Aggrey in tiff wanted the accident Memorial Coll< to obtain an to enhance obtained c ege. He f o r I) i p ibma w I th a in Law wi th college in University at mature entry. All I the loss of sight and deterioration s u c h rate . for has He has also There is only one decision on loss of an eye. It is only issue The is no claim The re for the plaintiff Mr. Asani, counsel to several awards made in our courts. to some awards in the United Kingdom on loss of Judgment was obtained by default. quantum of damages. consideration is special damages.. referred referred sight. the case of Kuntaja vs. Kotecha Civil Cause No. 429/84 where K3,000 was awarded for pain and suffering, K9,000 for loss of amenities and K11,000 for loss of earning capacity. 1 want to make general observations before I make the award. Only one local case has been sited for loss of an eye. No doubt this is the proper guide at least on those awards which are conventional, namely pain and suffering and loss of amenities. The awards from the United Kingdom would be of little consequence in our jurisdiction for the simple is disparity In the living and economic reason that there United Kingdom and Malawi. Assessment of standards of the on I.he community in which the plaintiff d am a ges is I) a s e(i the Attorney General (1973-74 7 A. L. R. (M) lives. Elias vs. 9). The principle was better expressed by Lord Morris of Both-y-gest in Jag-Singh vs. Toong Fong Omnibus Company 1964 1 W. L. R. 1382 : "To the extent to which regard should be had to the range' of awards in other cases which are comparable, such awards should, as well, be those which have been determined in the same jurisdiction or . in a neighbouring locality where same social, economic and industrial conditions exists." There is, however, something to be gained by looking at the development of principles in the United Kingdom to which we have a close connection in legal thinking and development. If there is any injury to which the Courts in the United Kingdom, the High Court, the Court of Appeal, and the House of Lords, have gone quite far in fixing conventional awards, it is for loss of an eye. Originally the awards were between £3,500 to £4,000 for the non pecuniary losses. By 1982, the awards had been fixed at about £11,000 for loss of vision in one eye where the other eye had perfect sight. Of course if there were peculiar circumstances beyond loss of an eye the conventional figure was adjusted accordingly. In Postel vs. Belgrave (Blackheath) Ltd. 1982 Mr. Thaker said "lie is unable to pay for any award which exceeds £10,000. In my view the appropriate award now without any complications and assuming perfect sight in the other eye, would be £11,000. In my view that keeps awards for injuries of this type up to date and keeps them in proper comparison and perspective for other kinds of injury. In rny judgment £11,000 is now.^ the proper figure. To this it is said - and rightly’ in my view - that I ought to increase that sum by reason Qf the defendant's performance of the plaintiff's left eye. The right eye was the better eye and Mr. Woose I y urges - in my view justification - that the normal award whatever it may be, for the loss of sight of one eye ought to be increased for this case." In the ('ar I ier case of Gohery vs. Di i rham Coun ty Comic i I 1978, where the injuries were very pecul iar, the Gouri. of Appeal approved an award for total blindness in the eye of £35,000. Lord Justice Stevenson had this to say generally for awards for loss of an eye: "The 135,000 Mr Orde, on behalf of the defendants, maintains is much too high. He called our attention to the case of Hamp vs. The Sisters of St. Joseph's Hospitai, to which the learned judge referred. That decision followed a decision in Goodlife vs. Snyder and Harding, in 1972, by Mr. Justice James, noted in Kemp's second volume, 5-012, in which he awarded £20,000 to a blinded man of 47. Aparently he made some statement as to the bracket for damages for a total blindness which was accepted and adopted by this court in Hamp's case. There, the bracket was stated to be in 1972, £20,000 to £24,000 and treated as still prevailing in 1973 - of course, before inflation started to gallop. It appears that in a case of Carr vs. Wynburn-Mason, in 1976 a learned Judge may still have regarded £24,000 as at any rate within the bracket for total blindness simpliciter. If he did so, I think Mr. Orde concedes that he was wrong, because Mr. Orde admitted that taking account of inflation the bracket today was as much as £30,000 at its lower end, £.35,000 at its higher. He sought to persuade us that if we bear in mind that this lady's additional injury to her right arm and wrist aggravated a pre-existing disability, the Judge's figure of £35,000 was much too high. Mr. Lawton for the plaintiff maintained that the £30,000 to £35,000 bracket admitted by Mr. Orde was much too low; the lower end of the bracket, whatever sort of test one applies, must by 1977 be taken to be at least £38,000. He had submitted to the learned Judge that £35,000 for blindness alone was the right figure, i bearing. in mind (dial ini.('rest would have to be added to that figure. IP it be the position that interest., does not, have to be added to Ilie figure of damages for pain and suffering and loss of amenity, and the House of Lords should decide that, he asks us to hold that £35,000 would be too low. He emphasises,! understandbly, the grave extra disability imposed on; this plaintiff by the wretched further accident which it is not contented was not attributable to the blindness for which the defendants were responsible. She was for a considerable period after it in plaster. No doubt the depression from which she suffered was at any rate contributed to by the terrifying further accident., and what might at first sight appear to be a minor matter - namely, the resulting transfer of her white stick from her good right hand to the left hand, which was not her dominant, hand - was on the evidence a serious matter. Without having to do more than state Mr. Orde's concession, it seems to me quite impossible to suppose that this court could interfere with this figure of £35,000, except possibly to push it upwards. For my part, 1 would not regard it as in any respect excessive; and I pass to consider the other head of damage which alleged to be too high." What we see developing in the United Kingdom is a cristalised award for loss of vision reviewed systematically with changes in the value of money and adjusted to particular circumstances of the case. I would think that we ought to develop in that direction. In the case of Kuntaja vs. Kotecha, the total award for non-pecuniary loss was KL2,000. This included K3,000 for pain and suffering and K9,000 for loss of amenities. Although the case was decided in 1984 and there has been a measure of oscillation in inflation and a piumetting of the value of the Kwacha, the right approach would not be to increase the award so much. The case of Kuntaja vs. Kotecha was to my mind isolated a instance in the sense that no financial award was made specifically Cor loss of an eye. The most that can be done therefore is to reconstruct a consistency between this award and subsequent awards for loss of an eye against awards for other injuries. I tried to reconstruct this consistency for non-pecuniary cases in the case of Chisanga vs. Stage Coach (M) Lid. Civil Cause No. 74/91 at the Principal Registry. Prior to that there was lack of uniformity of awards for personal injuries, partly because before then the awards did not particularise, the head on which the damages were made and excluded invariably other heads such as loss of earning capacity which are regarded as general damages. In that case I looked, at the case of Mayendayenda vs. Bangwanji where previous awards were reveal rd. The consistency was achieved by the award of K11,000 Cor the non-pccuniary Losses. I followed Chis a n g a v s . 51. a g e_C o ac h (M)__ Ltd. in Kambwiri vs. the Attorney General. The decision of Makono vs. the Attorney General decided by the Deputy Registrar was not before me, although it was decided much earlier, Civil Cause No. 95/89 District Registry K18,000 was awarded for pain and suffering. The injuries there were very critical." On the basis of these authorities I would hold that an award o f amen i l„ I es of KI3,000 to cover pain and suffering ion in one eye would be an appropriate award. be an award There has to you can only plaintiff continues no loss of earnings. conside red the print award for financial loss. In this case for loss of earning capacity because the in the same employment. There has been In Chisanga vs. Stage Coach (M) Ltd. I of govern i ng, awards on th i r tin' award: Wl ic re Where I.ha I i s Lord Justice have mu I I. i p I i cand -ipproach. use of his right arm. In that case a man who was running a (Eaton vs. A There is The K60,000 to the facts business lost i|| the are in words of be made" a guess to 1979 C. A. No. 30. previous decisions, should be restricted not the case, the awards, Megaw, "nothing more than Concrete Northern Ltd.) therefore no on award in the Chisanga case there. total There was some doubt about the W earnings postulated in the evidence. I assumed a monthly a income of K400.00 and an award of K60,000 was just a guess | to be made. Equally, guidance can not be had from Kuntaja | vs. Kotecha where KI1,000 was awarded. The real question is | & to decide whether there will be loss of earning. Once that | has been decided I have to determine what award should be 1 made. The plaintiff has demonstrated that because of loss j of vision he cannot go to places where he should have gone as part of his normal chores as a social welfare officer. He has also demonstrated that at the rate at which he is losing his sight, early retirement can not be ruled out. It may be said that he will continue for the most part of his life in this job and now generally, in the Civil Service, there is a measure of stability in employment. It must be remembered however, that one can not discriminate public servants from other servants. I think the situation should be looked at in terms of ordinary and reasonable employers. I n Martin vs. John Mowlen and Company Ltd. 1951, No . 272, unreported, Lord Justice Denning cited with approval a statement by a trial judge that: J I J "Employers must consider their own interests, and as the time comes when anyone has to be stood off, as the expression is quoted .... they do not stand off the man who is most capable of doing the work - they only stand off the man least capable and the man who has been incapacitated to a certain extent." 6/..... - 6 - I would hold that the prospects of loss of earning here is substantial and real. It may not amount to dismissal, it may manifest itself into early retirement. I award the sum of K12,000 well knowing that this figure is just plucked from the air. I therefore award in total--the sum of K25,OOO. OO. Made in Chambers this 1 jiv'd day of May 1992, at Blantyre. D F Mw REGISTRAR QI^TWE HIGH COURT