Mukula and Highway Transport Limited v Chiwala & Another (Appeal 163 of 2012) [2014] ZMSC 53 (4 June 2014)

J1 (507) IN THE SUPREME COURT OF ZAMBIA SCZ JUDGMENT NO. 21 OF HOLDEN AT NDOLA APPEAL NO. 163/2012 BETWEEN: MICHAEL MUKULA HIGHWAY TRANSPORT LIMITED 1ST APPELLANT 2ND APPELLANT AND PAMELA NGUNGU CHIWALA JAMES MUTUNGU CHIWALA (Suing as next friend of LUWI JAMES CHIWALA, an infant, and as Administrator of the estates of NKISI CHIWALA, and LENNY KASONGO). 1ST RESPONDENT 2ND RESPONDENT Coram : Mwanamwambwa, Ag. DCJ, Chibomba, JS, and Lisimba, Ag. JS. On 4th March, 2014 and on 5th June, 2014. For the Appellants : For the Respondents: Mr. V. K. Mwewa of V. K. Mwewa and Company. Mr. K. Bota of William Nyirenda and Company. J U D G M E N T Chibomba, JS, Delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. 6. 7. Evelyn Hellen Mwambazi vs Wedson Chisha Mwambazi Reuben Nkomanga vs Dar Farms International Limited, 25 of 2006. Phillip Mhango vs Dorothy Ngulube and Others (1983) ZR 61. Chimanga Changa vs Stephen Chipango Ngoma Shocked and Another vs Goldschmidt and others Ram Auerbach vs Alex Kafwata, SCZ Appeal No. 65/2000. The Mediana (1900) A. C. 113. (2010) ZR, (Vol. 1) 208. (1998) 1 ALL ER, 372. (1986) ZR 132. SCZ Judgment No. 8. Rose vs Willey (1951) CA 22 1 J2 (508) 9. 10. 11. Duncan Sichula and Another vs Catherine Chewe (2000) ZR 56 Litana vs Chimba and Attorney General (1987) ZR 26. Konkola Copper Mines Plc and Zambia State Insurance Corporation Limited vs John Mubanga Kapaya and Others (2004) ZR 233. Statutes referred to: 1. 2. 3. The High Court Act, Chapter 27 of the Laws of Zambia. The Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the Laws of Zambia. The Fatal Accidents Act, 1846. Other Materials referred to:- 1. Charlesworth and Percy on Negligence, 12 th Edition, Sweet & Maxwell, London, 2010. This is an Appeal against the judgment of the High Court at Kitwe in which the learned Judge awarded the sum of K180,000,000.00 for pain and suffering to the 1st Respondent and K10,000,000.00 to Luwi James Chiwala for pain and suffering and the sum of K7,000,000.00 to the estate of each one of the two children who died in a road traffic accident. (The above figures were before rebasing of the Kwacha). The history of this matter is that the 1 st Respondent and her three children were passengers in the 2nd Appellant's bus which was driven by the 1st Appellant. The bus was involved in a fatal road traffic accident in which two of the three children died as a result of the fatal injuries that they sustained. The 1st Respondent was severely injured and her right arm had J3 (509) to be amputated. She had to undergo several surgical operations. She also sustained several multiple injuries. She was first admitted in Kabwe General Hospital together with her son, Luwi, and were later transferred to St. John's Hospital where they were both admitted. Following this road traffic accident, the Respondents commenced this action by Writ of Summons under which they claimed the following reliefs from the Appellants:- “(i) Damages. (ii) Damages for loss of expectation of life of the deceased under the Law Reform (Miscellaneous Provisions) 1967 Act and the Fatal Accidents Act, 1846. (iii) Special damages. (iv) Interest. (v) Further and other relief as the Court may deem fit. (vi) Costs.” The cause of the accident was alleged to be due to the negligence of the 1st Appellant who was driving the bus at the time of the accident. The particulars of negligence were:- “1. Failure to keep any or any proper lookout or to observe in time or at all motor vehicle Toyota Hilux Registration Number AAH 4138 belonging to one CLEMENT TEMBO of Lusaka, a third party, which was ahead of the bus on the said road. J4 (510) 2. 3. 4. 5. Driving too fast in the circumstances. Failure to properly judge the clearance distance between the bus and the third party's motor vehicle. Failure to apply brakes in time or to so steer or control the bus as to avoid the said collision. Driving the bus into the rear side of the third party's motor vehicle and losing control of the bus and plunging into and falling off on the roadside." The learned Judge received evidence only from the 1st Respondent. He then decided to order the closure of the case for the reasons reflected at pages 9 to 10 of the Record of Appeal and can be summed up as “the trend for unwarranted adjournments of cases and the resultant delays”, which the learned Judge felt ought to be arrested as both parties were absent on that day. As stated above, the learned Judge analyzed the evidence from the 1st Respondent together with the Pleadings and found in favour of the Respondents and entered Judgment in their favour. He then proceeded to award the damages reflected above. Dissatisfied with the Judgment by the learned Judge, the Appellants have appealed to this Court, advancing five Grounds of Appeal in the Memorandum of Appeal. These are:- J5 (511) "1. 2. 3. The Honorable Trial Judge in the Court below erred in law and fact when he proceeded and deemed the Respondents' case as closed and delivered Judgment on the basis of the Respondents' lone witness when both the Appellants and the Respondents did not attend Court on the material date. The Honorable Trial Judge in the Court below erred in law and fact when having in the absence of both the Appellants and the Respondents deemed the Respondents' case as closed, he failed to make an Order and or indicate as to what had become of the Appellants' case. Even assuming that indeed the Honorable Trial Judge was correct in the manner he proceeded, he erred in law and fact when he awarded to the 1st Respondent the sum of K180,000,000 for pain and suffering as this was clearly contrary to and in breach of the principles upon which damages for pain and suffering are awarded. 4. The Honorable Trial Judge in the Court below erred in law and fact when he awarded special damages to the Respondents in the absence of strict proof. 5. Generally the damages awarded herein to the Respondents were excessive." In support of Ground 1 of this Appeal which attacks the learned trial Judge's decision to proceed and order the closure of the case and then delivered Judgment on the basis of the Respondents' lone witness, what the learned Judge stated on page 10 of the Record of Appeal was recast. This is that:- "On 27th July, 2012 when the matter was to resume for continued trial none of the parties were at Court although all had notice of the hearing date. J6 (512) There having been no good cause shown for the absence of the parties and their advocates and having heard the evidence of one witness for the Plaintiffs, I deemed the Plaintiffs to have closed their case and adjourned the matter to this date for my judgment on the evidence adduced before me. The reason for my decision is manifest from the long history of the case which in my view is an unfortunate history. The trend for unwarranted adjournment of cases and the resultant delays ought to be arrested." It was submitted that although the Appellants totally agree that unwarranted adjournments and the resultant delays in cases ought to be arrested and quickly so, the action by the trial Judge in the current case flies into the teeth of Order 35 of the High Court Rules (HCR). It was submitted that the trial Judge on finding the absence of both parties inexcusable, he ought to have struck out the matter for non-attendance of both parties pursuant to Order 35 (1) of the HCR instead of ordering closure of the matter and then proceeding to deliver Judgment. It was submitted that Order 35 (1) of the HCR is mandatory and that there is no proviso which could have allowed the learned trial Judge to opt out of the provision and deliver judgment in the manner that he did. In drawing an analogy, the case of Evelyn Hellen Mwambazi vs Wedson Chisha Mwambazi1 was cited in which we held that:- J7 (513) "Where a Plaintiff or Petitioner fails to appear on the date set for hearing, the proper course under Order 35 (2) is to strike out the cause from the list, it is not proper to dismiss the action." It was submitted that the learned Judge, therefore, ought to have struck out the matter from the active cause list instead of proceeding in the manner that he did. That by proceeding as he did, the learned Judge misdirected himself. It was pointed out that Ground 1 goes to the root of this Appeal and that Grounds 2 to 5 are argued in the alternative should the Court find that the Court below was on firm ground to proceed in the manner in which it did. In respect of the rest of the Grounds, it was submitted that there is no basis upon which the learned trial Judge could have come to such awards of K180,000,000.00 for pain and suffering, K19,166,000.00 for medical expenses and K7,000,000.00 each for loss of expectation of life in respect of the two deceased children as there is no evidence on record regarding the said claims. It was contended that the awards clearly offend the principle of awards of damages for pain and suffering and special damages as set out J8 (514) by this Court in Reuben Nkomanga vs Dar Farms International Limited2 in which we held that:- "An award of damages for pain and suffering was to be calculated on a weekly basis." Further, it was argued that the awards are also offensive to the principle in Phillip Mhango vs Dorothy Ngulube and Others3. It was submitted that such evidence is lacking in this matter. Therefore, that this appeal should be allowed with costs to the Appellants and that a re-trial, before a different High Court Judge, should be ordered. The learned Counsel for the Respondent, Mr. Bota, also relied on the Respondents’ Heads of Argument. In response to Ground 1 of this Appeal and the reliance on Order 35 (1) and (2) of the HCR, it was submitted that in so far as there is no reason on record as to any excuse for the Appellants’ absence from Court on the trial date, the Court below was entitled to fault the Appellant and proceed as it did. Citing the case of Chimanga Changa vs Stephen Chipango Ngoma4, it was submitted that this Court considered a ground of appeal similar to Ground 1 in which the appellant in the earlier case had contended J9 (515) that the Court below had erred in law in concluding the appeal without proof of service of the notice of hearing on the appellant. It was submitted that the Appellants’ failure to apply before the trial court to set aside the judgment was fatal as the Appellant sat on its rights and rushed to this Court unduly. Further, that there are no prospects of the appeal succeeding at trial as this is a case in which the evidence on record which the learned trial Judge reviewed, proved negligence on the part of the Appellants and the injury on the part of the Respondents and that for this reason, the Appellants ought not to be heard on its second ground of appeal either. It was submitted that under the Rules of Court, the learned trial Judge was not bound to strike out the matter as striking out a matter is an option which is not the only option. And that where the Court sees no good reason for the absence of the defendant, it may proceed as the learned trial Judge did and that in the current case, the learned Judge gave good reasons and stated that:- "There having been no good cause shown for the absence of the parties and their Advocates, and having heard the evidence of one witness for the Plaintiffs I deemed the Plaintiffs to have closed their case and adjourned the matter to this day for my judgment on the evidence adduced before me." J10 (516) It was further submitted that the learned Judge cited the case of Shocked and Another vs Goldschmidt and others5 in which, what is to be considered in an application to set aside a judgment given after a trial was propounded. It was submitted that therefore, this Appeal should be dismissed with costs to the Respondent for want of merit. We have seriously considered this Appeal together with the Grounds of Appeal and the arguments advanced in the respective Heads of Argument and the authorities cited therein. We have also considered the Judgment by the learned trial Judge. We shall deal with Grounds 1 and 2 together as they are inter-related. Grounds 1 and 2 of this Appeal raise the question whether or not the learned trial Judge was on firm ground when he ordered the closure of the case and proceeded to judgment delivery after hearing only one witness without stating what had become of the Appellant’s case as both parties were absent from Court on that particular day. The thrust of the Appellants’ arguments in support of the above Grounds of Appeal is that the learned trial Judge ought to have struck out the matter instead of proceeding as he did as what he did was contrary to Order 35 (1) of the HCR. J11 (517) The thrust of the Respondents’ arguments in response to the arguments in Grounds 1 and 2 of this Appeal is that the Court below was on firm ground in acting as it did as the learned Judge was not bound to strike out the matter as striking out the matter was not the only option available to the Judge. Further, that the learned Judge gave reasons why he proceeded as he did as no good reasons were given for the absence of the Appellants and their Counsel from Court. From the above arguments, the question is, did the learned trial Judge err by proceeding as he did instead of striking out the matter pursuant to Order 35 (1) of the HCR? For emphasis, Order 35 (1) of the HCR is recast hereunder and provides as follows: - “Where a civil cause on the cause list has been called, if neither party appears, the Court shall, unless it sees good reason to the contrary, strike out the cause out of the cause list.” We have considered the provision of Order 35 (1), of the HCR. There is no doubt that Order 35 (1) allows the High Court to strike out a matter for non-attendance of both parties at the hearing. It is also our considered view that the manner in which Order 35 (1) is cast does not at all take away the other discretional powers of the Court. J12 (518) In this respect, we totally agree with the submission by the learned Counsel for the Respondents that striking out the matter was not the only option that the learned trial Judge had in the circumstances of this case as the case was partially heard. Therefore, by ordering the closure of the case and then proceeding to Judgment delivery, the learned trial Judge, acted perfectly within his discretionary power. In this respect, we have had recourse to Order 35 (3) of the HCR which provides that:- “35 (3) If the plaintiff appear, and the defendant does not appear or sufficiently excuse his absence, or neglect to answer when duly called, the Court may, upon proof of service of notice of trial, proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant.” Properly construed, Order 35 (3) of the HCR empowers the High Court to proceed to hear evidence from a plaintiff where a defendant does not appear or where no sufficient excuse for his absence is given and then give judgment on the basis of the evidence adduced by the plaintiff. This is the procedure which the learned trial Judge applied, albeit, the fact that both the Plaintiffs and the Defendants were absent from Court on that day as the Judge had received evidence from the Plaintiffs’ witness, PW1. J13 (519) In any event, it has not at all been shown that the learned Judge exceeded his powers by proceeding as he did. We are also fortified in so holding by the record which speaks for itself and shows the lukewarm attitude the parties approached this case. The parties and in particular, the Appellants exhibited lack of interest towards timely disposal of the matter as evidenced by the numerous adjournments which the learned Judge granted at the instance of the parties both before and after PW1 concluded her testimony. We counted more than fifteen adjournments. The record shows further that in most cases, it was the Appellants and their Counsel who were absent. Therefore, the parties themselves left the learned trial Judge with no option other than to proceed as he did. The record further shows that the parties, especially the Appellants, did not heed the warning meted out on 22nd November, 2011, when the learned Judge observed as follows:- “It is a pity that the matter continues to drag on without an end in stages. It is also equally unacceptable for Counsel for the defendant to prefer to go to IRC when we agreed to be here today. However, I will reluctantly grant the adjournment for the very last time at the instance of both parties. Plaintiff’s counsel are directed to so inform their counterpart so that they too come prepared on the next hearing date I am now setting.” J14 Despite this timely warning, on 3rd February, 2012, the Appellants and their Counsel were again absent. The record shows that the learned (520) Judge granted two other adjournments before he finally ordered the closure of the matter and proceeded to Judgment delivery. The Order of 27 th June, 2012, states as follows:- “Court: In the absence of the parties and their advocates for no apparent good cause I take it that the Plaintiffs have closed their case. It was also incumbent upon them to serve notice of hearing upon the defendant’s advocates as per my order of 2 nd May, 2012. In the absence of the parties for no good cause, I am adjourning the case for Judgment to 17th July, 2012 at 09.00 hours.” Our firm view is that the learned trial Judge cannot be faulted for proceeding as he did as that was within his power and he complied with the procedure in Order 35 (3) of the HCR which we have recast in full above. This was a partially heard case. As such, the Appellants cannot be allowed to take advantage of the Respondent’s absence on that day by insisting that the Judge should have struck out the matter since both parties were absent. We so state because if the Appellants had been in attendance on that day, the learned Judge could have proceeded to receive their evidence J15 after ordering the closure of the Respondent’s case. So, the Appellants cannot be allowed to benefit from their own default. (521) As to the procedure a party in the Appellants’ circumstances is expected to follow, in the case of Chimanga Changa vs Stephen Chipango Ngoma4, we guided that a party must firstly apply before the same Judge to set aside the Judgment. We put it thus:- "We are mindful that the appellant was at liberty to apply to the Court to set aside the judgment and seek leave to present its evidence but it never did so…. In the circumstances of this case, we cannot fault the trial Court for having proceeded." (Underlining is ours). In the case of Shocked and Another vs Goldschmidt and others5, the Court in England gave good guidance and highlighted the different considerations in dealing with applications to set aside a default judgment and a judgment given after a trial in the absence of a defendant. The Court put it thus: - "On an application to set aside a judgment given after a trial, in the absence of the applicant, different considerations are applied than on an application to set aside a default judgment. In particular, the predominant consideration for the Court was not whether there was a defence on the merits but the reason why the applicant had absented himself and if the J16 absence was deliberate and not due to coincidence or mistake, the Court would be unlikely to allow a rehearing. Other relevant considerations included the prospect of success of the applicant in the retrial, the delay in applying to set aside, the conduct of the applicant, whether the successful party would be prejudiced by the judgment being set aside and the public interest in there being an end to litigation." (Emphasis ours). (522) In the current case, the Appellants have not explained their failure to attend Court on the date in question. They also did not apply before the learned Judge to have the Judgment in question set aside. They instead rushed to this Court by way of Appeal. Further, even assuming that the Appellants had applied in the Court below to set aside the Judgment in question, we do not see any prospect of such an application succeeding as the challenge is not on liability but on quantum of damages awarded. Consequently, the Appellants cannot be said to have disclosed any triable issues so as to necessitate a retrial. The converse applies as the Respondents would further be prevented from enjoying the fruits of the judgment in their favour. The manner in which the Grounds of Appeal have been couched in this Appeal also confirms that the Appellants are not challenging the issue of liability as what is in contention is the quantum of damages awarded by the learned Judge, which the Appellants contend, are too high. J17 In the case of Ram Auerback vs Alex Kafwata6 in which the Court below ordered closure of the case after hearing only the respondent’s witness as the Appellant was absent, in disallowing the appeal based on similar grounds and arguments like in the current case, we held that (523) litigants default at their own peril since any rights available as of course to a non-defaulter are normally jeopardized. We reiterate this position in the current case as the Appellants, by their own conduct, jeopardized their case. For the reasons given above, we find no merit in Grounds 1 and 2 of this Appeal. Before proceeding to resolve the rest of the grounds of Appeal in this matter, there is one point that we wish to highlight. This is that the manner in which Grounds 3, 4, and 5 of this Appeal were crafted, they attack the quantum of damages awarded. However, to ably determine the issues raised in these Grounds of Appeal, the circumstances under which the accident in question occurred and which led to the awards complained of, must be borne in mind. The evidence is both documentary and viva-voce. This evidence was to the effect that the 1 st Appellant was over-speeding and that despite protests from the passengers, he did not take heed; that due to the short distance between the bus and the motor vehicle in front, J18 when he attempted to overtake, he hit into that motor vehicle thereby causing the bus to career off the road and ending up on its side; the two children who were passengers on the bus were crushed to death while the (524) 1st Respondent was severely injured and her right arm was crushed and it had to be amputated while the surviving child was also injured. In view of this clear evidence as outlined above and as found by the learned trial Judge and as already stated above, there is no doubt that the accident occurred as a result of the 1st Appellant’s reckless or negligent driving. This is the reason why we are of the firm view that a re-hearing would not at all change these facts which proved negligence on the part of the 1st Appellant and also established liability. Ground 3 of this Appeal challenges the award of the sum of K180,000,000.00 for pain and suffering. It is contended that this award is excessive. That there was no evidence to support this award for pain and suffering. And that the award is contrary to the principles on award of damages for pain and suffering established by this Court in Reuben Nkomanga vs Dar Farms International Limited2 in which we held that an award of damages for pain and suffering must be calculated on a weekly J19 basis. The Appellants did not argue the award of K10,000,000.00 to Luwi for pain and suffering. The Respondents did not respond to the Appellants’ argument in support of Ground 3 of this Appeal. (525) We wish to point out from the very beginning that this area of award is acknowledged to be very difficult. Halsbury, L. C., noted this difficulty in The Mediana7 in which he stated that:- “How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. But nevertheless, the law recognizes that as a topic upon which damages may be given.” The learned authors of Charlesworth and Percy on Negligence in paragraphs 5-82, 5-84 and 5-86 at pages 373 to 375, also highlighted the difficulties associated with assessing damages for pain and suffering. They put it thus: - “Any injured person is likely to suffer loss in many ways in which it is not possible to measure in financial terms, such as pain, disability and the reduced ability to derive pleasure from life. In order to attempt to achieve restitution, which is the purpose of damages for personal injuries, the J20 Court must embark upon the wholly artificial exercise of placing a financial value upon such losses… Clearly in all cases where the body’s integrity has been violated, resulting in either temporary or permanent impairment, the injury by itself properly attracts an award of damages… Damages for pain and suffering are intended to provide reasonable compensation for the claimant’s actual and prospective bodily hurt, including that which results from necessary medical care, surgery and treatment. No perfect compensation can be given. The Court is not estimating the price which the victim would have accepted as (526) consideration for suffering the injuries sustained inevitably, monetary compensation will fall short of the value placed by the victim upon the injury to his mental and physical health...” In Rose vs Willey8, Birkett, L. J., stated that:- “The question for this Court is whether this figure was too wrong in the colloquial phrase, so hopelessly wrong that it was the duty of the Court to interfere with it.” In Duncan Sichula and Another vs Catherine Chewe9 in which the Respondent suffered severe paraplegic injuries as a result of a road traffic accident, we stated that:- “An appellate court should not interfere with an award unless it was clearly wrong in some way, such as because a wrong principle has been used or the facts were misapprehended or because it is so inordinately high or so low that it is plainly a wrong estimate of the damages to which a claimant was entitled.” J21 In discussing permanent injuries suffered by the 1st Respondent, the learned Judge stated as follows:- “I have considered the injuries sustained by the 1st Plaintiff which include the permanent loss of the right arm, which requires replacement with an artificial limb, and permanent scarring and facial disfigurement. The injuries called for a number of surgical operations over a period of time. I form the view that the 1st Plaintiff suffered a lot of physical pain and will continue to suffer a lot psychologically from the said wounds, scars and disabilities. For the 1st Plaintiff, I find an award of K180,000,000.00 to be reasonable in the circumstances for pain and suffering. I accordingly award the 1st Plaintiff that amount.” (527) We have considered the arguments by the Appellants under Ground 3. It is our considered view that the evidence on record established the extent of the injuries which the 1st Respondent sustained. The learned trial Judge put this as:- “At the time of the accident, the 1st Plaintiff was aged 33 years. According to the medical report dated 22nd December, 2005, she sustained the injuries particularized in the statement of claim. The report of 23 rd May, 2006 shows that she had sustained a severely traumatized left arm which was then disarticulated at the shoulder level in Kabwe. When she was transferred to St. John’s Medical Centre in Lusaka, it was observed that the wounds in the scalp, the thigh and shoulder were severely contaminated. On 16 th and 22nd December, 2005, 5th and 24th January, 2006 and 16th February, 2006, she underwent operative procedures to control sepsis and provide skin cover to J22 the wounds. Thereafter, infection was brought under control and healing of scar tissue took effect. As at 23rd May, 2006, the Consultant Orthopaedic Surgeon assessed the 1 st Plaintiff as follows: - 1. Complete loss of the right arm from the shoulder point. 2. Partial loss of the right claricle. 3. Large irregular scar over right shoulder. 4. Large hypertrophic scars on the right side of the face and the occiput. 5. Scars from the right thigh. The consultant’s further impression was that the 1st Plaintiff had 70% disability for the loss of the right arm, 15% disability for loss of right handedness, 10% facial disfigurement, and 30% for total pain suffered during the time of trauma and throughout her treatment period. The orthopaedic technician at the University Teaching Hospital had recommended that she acquires an artificial arm.” (528) We can only agree with the learned trial Judge that the extent of the injuries and the treatment which the 1st Respondent had to go through clearly shows that she must have suffered agonizing and excruciating pain and suffering. Therefore, as much as we agree with the principle in Reuben Nkomanga vs Dar Farms International Limited2, that for pain and suffering, a weekly rate should be applied, in the current case and in view of the injuries suffered, we do not consider the sum awarded to be excessive or unconscionable as the amount is not so outrageously high so J23 as to justify our intervention. We have noted that some of the injuries suffered have resulted into permanent scarring, disfigurement and permanent disability. The 1st Respondent had to undergo several surgical procedures in Kabwe and Lusaka. She lost her entire right arm which had to be amputated. We also note that in Reuben Nkomanga vs Dar Farms International Limited2, the permanent disability was 30%. In the current case, the 1 st Respondent suffered 70% disability for the loss of the right arm, 15% disability for loss of right handedness, 10% facial disfigurement and 30% total pain during the time of trauma and throughout her treatment period. (529) We are persuaded that these are the factors which the learned Judge took into account in awarding the sum of K180,000,000.00 for pain and suffering. The learned Judge also took into account the principle that permanent disability is a non-pecuniary damage which cannot exactly be quantified by arithmetical means. He based his computation on judicial precedents which he cited in his Judgment. He was on firm ground by doing so. Further, and as already stated above, we do not find the sum awarded to J24 be so inordinately high or so hopelessly wrong as to call for our intervention. For the reasons given above, Ground 3 of this Appeal also fails on account of want of merit. We dismiss it. Ground 4 of this Appeal attacks the “special damages” awarded amounting to K19,166,100.00 for medical expenses. The issue of the sums awarded as damages to the clothing, lost cash and funeral expenses was not argued by the Appellants as the submission centred on medical expenses. The Appellants contended that the sum awarded was not strictly proved as a special loss and that as such, the award offends the principle in Phillip Mhango vs Dorothy Ngulube and Others3 in which we (530) held that a party claiming special loss must do so with evidence that makes it possible for the Court to determine the value of that loss with a fair amount of certainty. The Respondent did not respond to Ground 4. We have considered the arguments in support of Ground 4 of this Appeal. Although we agree that special damages must be strictly proved, we see no reason why we should fault the learned trial Judge for awarding the sum of K19,166,100.00 under this head as medical expenses. In assessing the sums awarded, the learned Judge stated as follows:- J25 “With respect to medical expenses, there can be no dispute, and I accept that the 1st Plaintiff and LUWI received medical attention mostly at St. John’s. The Plaintiffs exhibited eleven receipts for medical expenses which add up to K6,979,000.00 plus an invoice for K12,187,100.00 to make a total of K19,166,100.00. These expenses were not seriously challenged and I do not find any reason to doubt them. I accordingly award the Plaintiffs the said sum of K19,166,100.00 in medical expenses.” The above shows that the learned Judge considered the receipts and the invoices produced before him. We cannot fault the learned Judge for awarding the sums in question as the special damages were sufficiently proved. We, therefore, find no merit in Ground 4 of this Appeal. We dismiss it. With respect to Ground 5 of this Appeal, the Appellants contend that the damages awarded to the Respondents were generally excessive. (531) Regarding the award of K7,000,000.00 for each of the two deceased children for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Act and the Fatal Accidents Act, it was submitted that there was no basis upon which the learned Judge could have come up with such an award as no evidence was adduced to support the claim. We have considered the above submissions. It is our considered view that the learned Judge cannot be faulted for making the J26 awards complained of as he properly directed himself and reviewed the past awards. Among the cases that the learned Judge considered is the Litana vs Chimba and Attorney General10 case which was decided 1987. In that case, we guided that awards for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Act should be fixed regardless of the age of the deceased. The other case cited is Konkola Copper Mines Plc and Zambia State Insurance Corporation Limited vs John Mubanga Kapaya and Others11 which was decided in 2004. In the above cited case, we increased the award for loss of expectation of life from K4,000,000.00 to (532) K5,000,000.00. In making the award complained of, the learned Judge stated that he had taken into account the fluctuations in the kwacha. We also note that these were young children who were in School. They had a future ahead of them. In our view, by taking into account the depreciation of the Kwacha, the learned Judge cannot be faulted as this is one of the factors the court must take into account in arriving at a sum to be J27 awarded under this head. Taking into account the depreciation of the kwacha, the sum of K7,000,000.00 awarded in 2012 as loss of expectation of life for each one of the two deceased children is not too excessive as to call for our intervention. We find no merit in the contention by the Appellants. Therefore, Ground 5 of this Appeal also has no merit. The same is dismissed. In summing up, all the five Grounds of Appeal having failed on account of want of merit, the sum total is that this Appeal has wholly failed. The sums awarded to the Respondents by the learned Judge are confirmed and upheld. This appeal is therefore, dismissed with costs to the Respondents in this Court and in the Court below to be taxed in default of agreement. (533) …………………………………………. M. S. Mwanamwambwa ACTING DEPUTY CHIEF JUSTICE J28 ………………………………………….. H. Chibomba SUPREME COURT JUDGE …………………………………………… M. Lisimba ACTING SUPREME COURT JUDGE