Reba Industrial Corporation Limited v Nicholas Mubonde (APPEAL NO. 005/2017) [2017] ZMCA 162 (21 September 2017)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 005/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: REBA INDUSTRIAL CORPORATION LIMITED APPELLANT AND NICHOLAS MUBONDE RESPONDENT Coram: On 6 th April, 2017 and 21 st ~eptember, 2017 For the Appellant: Mr. N. Nchito SC, of lYlessrs Nchito & Nchito For the Respondent: Mr. W. Banda of M~ssrs Wilson & Cornhil MULONGOTI, JA, d elivered the Judgment of the Court. t,. Cases referred to: 1. Mazoka and Others v Mwanawasa ~nd Others (2005) ZR 138 (SC) 2. Chilufya Kusensela v Astridah Mvul~ (2014) 1 ZR 82 (SC) I 3. Konkola Copper Mines and Zambia,_ State Insurance Corporation Limited v John M. Kapya (2004) ZR 1233 (SC) 4. Fafr v London and North Western Railway Company (1869) 21 LT 5. Reuben Nkomanga v Dar Farms : International Limited SCZ i Judgment No.25 of 2005 -Jl- 6. Moriaty v McCarthy (1978) 1 WLR 155 7. Cook v K. L. Kier and Company Li"'-:ited (1970) 1 WLR 774 8. Michael Mukula and Highway Transport Limited v Pamela Ngungu and Others (2014) 2 ZR 21 (SC) 9. British Transp.ort Commission v G<furley (1955) 3 ALL ER 796 (HL) 10. Mallett vMcMonagle (1969) 2 ALL~R 179 at 191 11. Cavangh v Ulster Weaving Company Limited (1960) A. C 145 12. Easton v Concrete (Northern) Limited 1979 C. A No. 30 (paragraph 1-011 Kemp & Kemp) 13. Nance v British Columbia Electrica_l Railway (1951) 2 ALL ER 448 14. Henwood v Naoumoff (1966) ZR 78 (SC) Legislation referred to: 1. The Workers Compensation Act No. 10 of 1999 Books referred to: 1. Gordon Exall, 'Munkman on Damages for Personal Injuries and Death', 11 th Edition, Lexis Nexis Butteiiworths pages 43 to 46 and 89 2. Simon Allen et al 'Guide to Damages' 3rcl edition, Jordans pages 1 . 2 3 . Harvey Mcgregor 'Mcgregor On Dam.ages' 13th edition, Sweet & Maxwell, London 1972 pages 186-187 paragraph 262 (b) 4. Kemp & Kemp 'The Quantum of Damages' vol.1, Sweet & Maxwell page 1015 paragraph 1-011 This is an appeal against the awards :granted to the respondent Nicholas Mubonde, following a decision iof the Deputy Registrar at assessment. Before we dwell in detail of the amounts !awarded, it is necessary to say a little a bout the background of the matter. The respondent is an -J2- unmarried male, who was aged 22 at th~ time of the injury that gave rise to these proceedings. The respondent a student of Northern Technical College (NORTEC) in Ndola, w,as on industrial attachment with the appellant company. On 12th October, 2012, while on duty, he was instructed by his supervisor to go underneath a truck which was being repaired and which had no chocking blocks on its wheels. Unfortunately, the truck rolled over after:the respondent attempted to (9 release the lever as instructed by his supervisor. The respondent was crushed resulting in severe injuries to the spinal cord that left him paralysed and will have to spend the re$t of his life in a wheelchair. He has been medically classified as paraplegic. He sued the appellant in the High Court. The appellant conceded liability on the merits which culminated in a consent judgment. The matter was then referred to the Deputy Registrar for ass;essment of the quantum of damages. After evaluating the evidence, the Deputy:Registrar awarded damages to the respondent as follows: I. Pain and suffering II. Loss of amenities III. Permanent disability K30Q,000.00 Kl50,000.00 K250,000.00 -J3- IV. Loss of future and prospective earnings: - Salaries K2,064,000.00 (calculated at a projected earning of K4000.00 X 12 X 43 years) - Medication - Taxi fares K ,10,000.00 K 900,000.00 - Care and Maintenance Kl ,080,000.00 Total (9 V . Special damages : • Unpaid salaries • Taxi fares Total Total amount assessed K7,280.00 Kl,600.00 K4, 754,000.00 K 8,880.00 K4, 762,880.00 Less defendant's (appellant's) expenditure • Statutory pension (Workers Compensation) K45 l .86 X 12months X 50years = K271,200.00 • Constant attendance allowance (Workers Compensation) K500 X 12months X !50years = K480,000.00 • Payments to Sinozam Hospital by Workers Compensation: - Medical receipt (dated 25/08/ 1'4) K 80.00 - Medical receipt (dated 25/08/ 1'4) Kl00.00 - Medical Aid (dated 25/08/ 14) _ K240.00 - Lunch allowance (dated 25/08/ 14) K 60.00 Total Defendant's expenditure K 751,680.00 -J4- Total amount assessed due to the plaintiff (respondent) K4,011,200.00 Dissatisfied with these awards, the appellant has raised seven grounds of appeal as follows: 1. The learned Deputy Registrar erred :in both law and fact when he departed from the award of K55,0<;)0.00 for pain and suffering awarded by the Supreme Court in Chilufya Kusensela v. Astridah Mvula (SCZ Judgment No. 3 of 2014) on the basis of devaluation of the Kwacha over a two year period which consideration was discounted in the same Kusensela case for a five year period. 2. The learned Deputy Registrar erred in both law and fact when he awarded the respondent damages -ili.nder heads the respondent had not pleaded namely loss of futu:re and prospective earnings, special damages and permanent dis~bility. 3. The learned Deputy Registrar erred in both law and fact when, having found that the respondent's ! salary prior to the accident had been Kl ,040.00 he projected res,pondent's net earnings to be K4,000.00 per month. 4. The learned Deputy Registrar erred in law and fact when, in calculating loss of future and prospkctive earnings, he included medication, taxi fares and care aiiid maintenance which are neither future nor prospective earnings. -JS- 5. The learned Deputy Registrar erre~ in both law and fact when he did not reduce the final award t6 the respondent to cater for taxes. 6. The learned Deputy Registrar er~ed 1n law and fact when he calculated the monthly constant attendance allowance payable to the respondent by the Workers Compensation Fund Board at the rate of K500.00 when the evide~ce led showed that the actual rate is K800.00 per month. 7. The learned Deputy Registrar erred in law and fact when he did not consider the evidence led Hefore him by the Workers I Compensation Fund Board to the e,ffect that the Board pays the respondent's periodical 1nedical expenses, continues to provide him with rehabilitation services arid also medical and surgical kits for life. The parties both filed heads of argument. Mr. Nchito SC, who appeared for the appe~lant relied on the appellant's heads of argument. Counsel argued gro'W.nd two first. He contended ' that since the respondent had not pleadep. damages for loss of future and prospective earnings, special damag~s and permanent disability, the Deputy Registrar erred in both law 1and fact when he awarded damages under these heads. The Supreme Court decision in the case of Mazoka and Others v. Mwanawasa a~d Others 1 was relied upon that: "the function of pleadings is to give fair notice of the case which has to be met and define the issues on which the court will have to -J6- adjudicate in order to determine the :matters in dispute between the parties. Once the pleadings have beJn closed, the parties are bound by their pleadings and the court has to take them as such" In arguing grounds one, three and fouf, the learned State Counsel conceded that ground one pegs the holding in the Chilufya Kusensela v. Astridah Mvula2 case at KSS,000.00 fbr pain and suffering when in fact the court awarded K3,000.00. However, State Counsel argued that departing from the K3,000.00 award in that case is an excessive d eparture from precedent. The Deputy Registrar was bound to follow I the Supreme Court decision in that case as it is the latest case on pain and suffering. In addition that there was: no evidence of the excessive depreciation of the K wacha between the years 2014 and 2016. It is the further submission of counsel that apart from the award of future and prospective income being erroneously awarded as it was not pleaded, the Deputy Registrar erred in 'using K4,000.00 as monthly salary when the r espondent was merely on attachment with a salary ~ of Kl, 040.00. That there was no 1nathe.matical justification for the projection of K4,000.00. The case of Konkola Copper Mines ancl Zambia State Insurance I Corporation Limited v. John M. Kapya3 , a 2004 case was relied on. In that case, it was argued, the Supreme . Court used the deceased's actual salary less taxes as a multiplier. It ~,as counsel's argument that should this Court find that loss of future earnings (though not pleaded), could be awarded, taxi fares and care and 1naintenance, be -J7- excluded as · they consist of expenses rather than earnings in this instance. According to State Counsel, earnings are as defined in section 2(1) of the Workers Compensation Act No. 10 of 1999 that "the average remuneration of a worker at the time ! of an accident or disease calculated in the manner provided in section seventy-nine". Going by this definition taxi fares and care and maintenance do not fit to be (It qualified as earnings. The Deputy Regrstrar therefore, misdirected himself in including these items as par't of future and prospective earnings. With regard to ground five, State Counsel submitted that the learned Deputy Registrar erred both in law and fact when he did not reduce the final award to cater for taxes. Ground six was argued on the basis that the evidence led showed that • actual rates of the man thly attendance allowance payable is K800. 00 . Therefore, the Deputy Registrar erred ·when he calculated it at KS00.00. Thus an amount of Kl80,000.0'o ought to be reduced from the final award. Finally, in arguing ground seven, the learned State Counsel contended that evidence was led by the Worker's Corhpensation Fund Board, at page 191 of the record of appeal, that it provides periodical medical expenses to the respondent to provide him :with rehabilitation services -J8- and medical and surgical kits for life. Therefore, the Deputy Registrar erred in law and fact when he did not consider this evidence. That due regard should be taken of this evidence so as to have a fair assessment of the damages. In arguing ground one, the respondent's counsel, Mr. Banda contended that the Deputy Registrar noted the injuries the respondent suffered at pages J 14 to J 15 and that I?-e suffered 100% permanent ( . disability as a result of the defendant's tiegligence. That in assessing the award for pain and suffering, the IDeputy Registrar considered several factors such as the extent of the: plaintiffs injury, the period for which the plaintiff was hospitalized, ·the injury and excruciating pain he experienced as elucidated by th~ Supreme Court in the case of Chilufya Kusensela2 including the depreciation of the Kwacha. It was the further submission of counsel that the appellant wrongly referred to the sum of KSS,000.00 as having been awarded for, pain and suffering in the Chilufya Kuserisela2 case when in fact K55,000.00 was awarded for damages for ·permanent disability. While K3,000.00 for pain and suffering. • According to counsel, the Deputy Registrar was on firm ground when he made an award for pain and suffering. In arguing ground two, the respondent;s counsel referred to the authoritative writings in the book "Munk.man on Damages for Personal Injuries and Death)} at page 43 paragraph 6.10 that: -J9- "The personal to·ss, then, has a number of elements or aspects. Where there is permanent injury, damages !to be assessed may include the I following: i. Total loss, impairment of limb or other specific part of the body, l or impairment of the body as a whole ii. Shock of the injury, sometimes i,ollowed by neurosis iii. Physical pain at the time of the injury, during surgical I operation and perhaps during the ,·est of life." (. He also referred to the case of Fair v. London and North Western Railway4 , where it was held that: "in assessing the compensation, the Ci:ourt should take into account two things; first the pecuniary loss (PlCl;intiff} sustains by the accident; Secondly, the injury he sustains in ' his personal or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss, they have to take into account not only his present ! loss but his incapacity to earn a future imp,·oved income". • In addition, counsel referred to the case o_f Reuben Nkomanga v. Dar Farms International Limited5 where the Supreme Court of Zambia guided as follows: " ....... the principle is that in every case, of personal injuries, there are I two main factors which have to be tal~en into account in assessing damages. On the one hand, there is the personal injury itself, rising from the loss of a limb or other part !of the body to slight cuts or bruises and involving not only pain andihardships but also loss of the pleasures of life. On the other hand, there is the financial loss". -JlO- Furthermore, in the Nkomanga case the ~upreme Court guided that: "in a claim for damages for personal i~juries, the Court will usually deal with the claim under· the following heads; that is to say (i) pain and suffering (ii) loss of amenities (iii)' permanent disability and (iv) loss of futu,·e or prospective earnings" . . Thus, according to counsel the unpleaded !claims complained of by the appellant are components of the broader claim for damages. He • submitted that ground two is equally ~evoid of merit and it be dismissed. As to grounds three and four counsel suomitted that the respondent was paid Kl,040.00 per month because he;was on attachment in order to gain experience. This amount was not based on the rate that he would have been earning if he was a full Dime employee. The Deputy Registrar was the ref ore, on firm ground when he used pay slips of full time employees with similar qualificatioµs to determine what the respondent would earn as future ea/nings had he not been • incapacitated by the accident. Furthermore, that the Deputy Registrar was on firm ground to include medication, taxi fares and care and maiqtenance as part of loss of future or prospective earnings. Due to 'the respondent's paralytic condition, he is prone to physical ailments which would require medication for the rest of his life, travel to apd from the hospital which would require a taxi. He is also incontinent and needs constant -J11- assistance for the rest of his life. Accordi~gly, grounds three and four lack merit and be dismissed. Regarding ground five, counsel argues t11at the amount awarded as damages is the value for which the re$pondent is entitled to and therefore exclusive of tax. The quantum ! of damages granted should thus now be in addition to the taxes. • In relation to ground six, counsel submit;S that the Deputy Registrar erroneously indicated the constant allowpnce as KS00.00. Counsel contends that this notwithstanding, the calculations were done on the I constant allowance of K800.00. Thus the icorrect amount was arrived at after multiplying the constant allowante (K800.00) by twelve (12) months and by fifty (50) years which is eqili.al to K480, 000.00 and not K300,000.00 if KS00.00 had been used. In arguing ground seven, counsel submitt~d that the Deputy Registrar • acknowledged the contribution of the Workers Compensation Control Board to the financial welfare of the respbndent, when he made the award for other future requirements. faJ,s stated at page J22 last paragraph, "I am of the view that these ca'!i be sourced from the funds awarded under medication and salaries an1a. same are provided by the Workers Compensation Control Fund Board". Furthermore, that section 6 (1) of the Workers Compensation Act No. 10 of 1999 provides for the consideration ct>f the expenditure incurred -J12- of payments made by the Board to a cdaimant in a civil suit. The Deputy Registrar was cognizant of this \ and deducted from the total award by the Court, the total expenditure incurred by the Board. At page J27, he also considered that some of the claims could not be granted as they would be made by the Workers Compensation Fund Control Board such as medicated soap'., linen, washing powder, air freshener, mosquito nets and special be9. That clearly, ground seven lacks merit as the Deputy Registrar took into account the fact that the Board was and would continue making {inancial contributions to the respondent. In conclusion, counsel submits that the appellant has not attacked the quantum of the judgment below. The awards should therefore, be upheld. • We have considered the arguments by counsel, the consent judgment and the judgment of the Deputy Registrar. Before we turn to an analysis of the grounds of appeal against' the backdrop of the facts in this case, we note that in the High Court the respondent claimed for inter alia payment of damages for injuries suffered arising out of the defendant's negligent act or omission~, damages for pain and suffering, damages for loss of expectationiof life and damages for loss I of amenities. It is a notorious fact that no trial was conducted because the parties entered into a consent judgment couched thus: "By consent of the parties herein, IT IS HEREBY ADJUDGED as follows: -J13- 1. That an interlocutory judgment be : and is hereby entered for the I plaintiff and damages be assessed b'Y: the Deputy Registrar. 2. That the costs be agreed and in defa~lt to be taxed 3. That neither party to this action or 1their representative shall have any further claims on these facts tjr similar facts nor incidental thereto upon the payment of the amount contemplated in paragraph 1 hereof''. The consent judgment was signed by the parties through their legal representatives and the High Court Judge. We note that before the Deputy Registrar both parties gave oral I evidence. The respondent testified and gave details of his injuries. He referred to the final medical report exh ~bit 'NM5' of his affidavit in support of the application for assessme·nt. The said final medical report is at page 97 of the record ofi appeal, showing that the respondent suffered total paralysis after vertebral fracture with spinal I cord injury. The report is from Sinozarri Hospital. It also indicates that the respondent was admitted from 1 23rd October, 2012 to 21 st February, 2013. The respondent further testified that he was also admitted to the Zambian - Italian Orthop9-edic Hospital in Lusaka. At page 55 of the record of appeal is a letter :dated 12th April, 2013, from Doctor E. Simwanza of the Orthopaedic hospital to NORTEC informing that the respondent sustained a spinal : cord injury and had since become paralysed. • The defendant's (appellant's) counsel cross examined the respondent on the extent of his injuries at page 290 of the record of appeal. At -J14- page 292 he was cross examined on loss df future earnings. We note at pages 278 to 283 that the appellan~ had raised the issue of unpleaded claims before the Deputy Registrar in particular special damages. The respondent's counsel contended that the claims are within the schedule of damages the law · allows or contemplates in cases of damages for personal injuries. 'The Deputy Registrar was referred to the book 'Munlcman on Damag~s for Personal Injuries and I Death'. The Deputy Registrar reserved ruling. Unfortunately, perusal of the record is clear that the ruling was never 4elivered though the parties proceeded to assessment as afore mentioned. Be that as it may, we read the book MunKIDan on Damages and also the Supreme Court decisions in the ChUufya Kusensela2 case and Reuben Nkomanga v. Dar Farms International Limited5 I . We couldn't agree more with Mr. Banda's subn1issions on this score based on the book Munkman on Damages and tite Supreme Court decisions as cited. We also had recourse to the learned author;s of 'Guide to Damages'who put it simply that pain and suffering damages are subjective. They are "awa,·ded for pain which the claimant feels fonsequent to an injury, both in the past and into the future. The level of ~amages will depend upon the duration and intensity of the pain and suff ery.ng". -J15- Additionally that loss of amenity is objec~ive. Damages are awarded for the reduction in the ability of the claimant to perform everyday tasks and enjoy life, and it does not matter whether the claimant is conscious or not of the affect upon his life,: It can include interference with hobbies, a reduction in marriage prospects as in Moriaty v. McCarthy6 or interference with the claima,nt's sex life as was the case ' in Cook v. K. L. Kier and Company Limited7 • - It is settled law therefore, that in assessing a claim for damages for personal injuries, the awards should be c\assified under the following heads (i) pain and suffering (ii) loss of amenities (iii) permanent disability and (iv) loss of future prospectiv~ earnings. It is immaterial whether they are specifically pleaded or not. In casu, we note also that the appellant's counsel did cross examine the respondent on these issues. Therefore, the Deputy Registrar did not e~r in law and fact when he awarded damages for permanent disability and loss of future and prospective earnings as these awards are consequential and are naturally considered in claims for dam~ges for personal 1nJuries. However, we agree with Mr. Nchito, SC, tJ.:iat special damages should ' have been specifically claimed i.e. taxi far€s and unpaid salaries. We note that in fact the respondent testified in cross examination at page i 289 line 25 of the record of appeal that the:appellant continued paying him a fter the accident. Ground two is therief ore partially successful to -J16- the extent that taxi fares and unpaid : salaries should have been specifically pleaded. With regard to ground one, we note that t~e respondent suffered severe injuries after the accident. He has b~en medically classified as paraplegic ( 100% permanent disability) per medical report at page 97 I of the record of appeal. We note that !in the Kusensela case, the respondent suffered 30% permanent disapility. The Deputy Registrar took into accourat the senous 1nJuries the respondent sustained as follows; T12 v~rtebral fracture with spinal I cord injury, total paralysis from T12, also considered was the period I of hospitalization for seven months, 100°/o disability and the fact that ' he is incontinent and confined to a wheel~hair. In light of the serious injuries e specially the 100% disability we would therefore not interfere with the award of K250,000.00 for perma;nent disability. The Deputy ' Registrar properly relied on the Chilufyai Kusensela2 case where the extent of the disability was considered and depreciation of the Kwacha. ' The Deputy Registrar after considering th'e Chilufya Kusensela2 case and Michael Mukula and Highway Tra:nsport Limited v. Pamela I Ngungu and Others8 where the Supreme. Court upheld the award of K180,000.00 given by the High Court for ;pain and suffering, opted to follow the Michael Mukula and Highway Transport case reasoning that it was the latest decision. We cannot: fault him for this approach. • -J17- We are cognizant that in arguing ground one on pain and suffering, the appellant's counsel also contends tha't the Deputy Registrar took into account the depreciation of the Kwacha which he stated was sky rocketing and yet there was no evidence df the excessive depreciation between the years 2014 and 2016. We ;are inclined to agree with counsel on this score. In that regard we wquld interfere with the award ofK300,000.00 for pain and suffering. We 1instead award K280,000.00 for pain and suffering. We shall consider grounds three, four and six together as they are interrelated. Regarding ground three, the ;evidence before the Deputy Registrar was clearly that the respondent was a student on industrial attachment with the appellant and was getting a salary of Kl ,040.00 per month. The basic principle as far as loss of earnings and out of pocket expenses are concerned, is that tHe injured person should be placed in the same financial position, sd far as can be done by an award of money, as he would have been had the accident not happened per Lord Goddard in British Transport ,Commission v. Gourley9 . Lord Reid stated in the same case that: • "if he (the Plaintiff} had not been injured, he would have had the prospect of earning a continuing income, it may be, for many years, but there can be no certainty as to wH.at would have happened. In many cases the amount of that incom'r may be doubtful, even if he might have died or suffered from some incapacity at any time. The loss which he has suffered between the date of the accident and the date of the trial may be certain, but hi,s prospective loss is not. Yet damages must be assessed as a lump sum once and for all, not -J18- prospective loss. Such damages can on!ly be an estimate, often a very rough estimate, of the present value of :his prospective loss." In Mallett v. McMonagle 10 per Lord Diplock: ''the court must make an estimate as to what are the chances that particular thing will or would have i happened and reflect those chances, whether they are more or -less even, in the amount of damages ·¼ ". In Cavangh v . Ulster Weaving Company Limited11it was observed that: ''the position before and after the accident should be contrasted to estimate the difference." According to the book "Munlcman on Damages for Personal Injuries and Death!', this entails if a claimant was worl<:ing before the accident and incapable of work after then the calcula tion is based on the figure that the claimant would h ave earn ed if h e had !ilOt been injured. The author ofMunkman on damages acknowledges that damages for loss of future earnings are not easy to calculate, while past income maybe fairly easy to calculate, things get a little m ore m uddy when it comes to expected fu ture income losses especially lost earning capacity v.rhich means the ability to n1ake a living in eith er the job one had before or in a • comparable one. According to the book 'Guide to Damages ; "the claimant (respondent) has the burden of s howing (a) the likely pattern of her future earnings if -J19- she had not been injured and (b) the likely Rattern of the.future earnings of the claimant given the fact that she has 1f1-0W been injured as a result of the defendant's negligence. )) Mcgregor On Damages observes that claims for loss of prospective earnings arise every day in personal injuries cases, and two factors ' militate against any exactness in the assessment of the loss, viz the uncertainty as to the precise length of time :that the plaintiff's disability I will last, and the uncertainty as to the precise pattern that the plaintiffs future earnings would, but forth~ injury have taken. Neither of these uncertainties prevents the court from making an assessment of the probable loss. • In Kemp & K emp 'The Quantum of Dam~ges' it is observed that "in most of the reported cases dealing with loss l,lnder this head the court has assessed a lump sum by way of damages. Usually, as Megaw L. J said in Eaton v Concrete (Northern) Limited12 'the assessment of damages under this head is nothing more than a guess to be made"' I The authors also recognize that the way in: which the Court calculates the appropriate lump sum is by applying :a suitable multiplier to the multiplicand. The selection of multiplier was an arbitrary process in I the sense that the 1nultiplier was not calc1..ilated in a precise or logical 1nanner. In the present case the Deputy Registrar , accepted the respondent's salary of Kl ,040.00 per month. He reas oned that the respondent -J20- i would have retired at 65' years old. Furthei"more, that his projected net earnings per month at 65 years old would: have been K4,000.00 as an upward adjusted salary. He then calculated the lump sum as follows: I K4000.00 X 12 months X 43 years (diff~rence between 65 years of retirement and 22 years age at accident) i= K2,064,000.00. This was the sum awarded as loss of future and prcpspective earnings. We are inclined to interfere with this awar? going by the various cases and books we have referred to above and as argued by Mr. Nchito SC. ! Furthermore, we note that the responde'.nt will be paid a statutory monthly pension of K451.86 and a constant attendance allowance of I K800 .00 for life in accordance with the A:ct as testified by DW2. We will deal with this in detail later. • In the case of Konkola Copper Mine'.s Plc and Zambia State Insurance Corporation Limited v. Kapya3 cited by Mr. Nchito, SC, the Supreme Court in considering whethdr the awards were wrong at ' I law stated thus: "the guiding principles on which an app'ellate court can interfere with the quantum were clearly given in the case of Nance v. British Columbia Electrical Railway13 and followed by our Court of Appeal then, in the case of Henwood v. Naou,ri.of p. 4 and these are that the I appellate court must be satisfied either that the Judge, in assessing the damages applied a wrong principl~ of law, or if he did not err in law, then the amount was either so inordinately low or so inordinately high, that it must be a wholly erroneou$ estimate of the damage". -J21- We are of the considered view that the $.ssess:rhent by the Deputy Registrar resulted in over compensation . of the respondent as the award is inordinately high. We wish to clarify that the Deputy Registrar did not use the salaries of the re'.spondent's friends who are fully qualified as stated by Mr. Banda, :but he projected a future income of K4,000.00. The projected futut;e income at K4,000.00 per month is too high. We find a projected inco:me of K2,800.00 per month to b e appropriate. We are alive to the fact, that the respondent was a ' student on industrial attachment at time of accident though awaiting his final results. We consider also that th'.e multiplier of 43 years as the number of years h e would have worked to be wrong in principle. As noted by Lord Reid in British Transport Commission v Gourley9 : ''there is no certainty as to what would have happened had he not been injured". Furthermore, according to Kemp & Kemp the age to consider is the plaintiffs age (respondent) at trial. The respondent here was 25 at time of trial. Thus taking all of the above into a;ccount, we would take 30 years as the multiplier. We, therefore, recduce the multiplier from 43 years to 30 years. • We opine that following his injuries hi$ life expectancy has also severely reduced. Thus, the loss of future earnings be calculated as follows: K2,800.00 X 12 X 30 years = K1 ;008,000.00 as the amount for loss of future and prospective earnings. -J22- '(,;. We now wish to clarify on the issue of the :statutory monthly pension I and the constant attendance monthly allowance as intimated earlier. We have noted the arguments in grounds four and six that the I Worker's Compensation Fund Control Board will cater for taxi fares, care and maintenance as testified by DW2 ~page 297 -299 of the record of appeal) and that the respondent would get a monthly pension of I K451.86 and K800.00 constant attendanc~ allowance for life. We note that the appellant argued that the Depuzy Registrar erred when he calculated the constant attendant allowar;ice at K500 .00 per month. The respondent's counsel conceded to grµund six to the effect that K800.00 is the monthly rate. Counsel h6wever, contended that the calculation was done at K800.00 per rilonth such that the total amount remains the same. We agree with the respondent's counsel that the Deputy Registrar erroneously referied to K500.00 but the total amount is clear that he used K800.00 as the monthly rate. However, we note that the Deputy Registr.ar considered the constant attendance allowance and the statutory monthly pension to be • expenditures which he deducted from the final award. The respondent's counsel argued that this was' in accordance with section 6 (2) of the Act. Clearly, section 6(1) and (2):ofthe Act enjoins the Court to reduce from the award any compensatlon which has been paid to the claimant (respondent) by the Workers Compensation and is due to be repaid by the employer (appellant). The Deputy Registrar reduced frorn the final award the monthly pension and the constant attendance allowance as expenditures due to the appellant. At page 224 of the -J23- record of appeal is the respondent's statertjent of account showing that the Workers Co1npensation Fund has been paying him the monthly pension already. I ' The monthly pension and constant atte~dance allowance are to be paid to him for life. The Deputy Registrar used 50 years as the I I multiplier of which we are inclined to itlterfere with. As canvassed I above we consider 30 years to be a fair projection of life expectancy . considering the respondent's injuries. Th1ils the monthly pension is to be calculated as follows K451.86 X12: X 30 =K162,669 .60 and I constant monthly allowance K800.00 X '12X 30=K288,000.00 these I I amounts are to be deducted from the totai due to the respondent. The I hospital bills paid to Sinozam Hospital by: the Workers Compensation were also deducted as expenditures by tl!e appellant. We opine that these could only be deducted if the app;ellant refunds the Workers Compensation Fund. In light of all the foregoing we allow grounds three, four and six as indicated. • In relation to ground seven, we note, as su;bmitted by the respondent's counsel, that the Deputy Registrar did 1consider that the Workers Compensation Fund Control Board would ;provide the respondent with medicated soap, linen, special bed :and medical or surgical I requirements for life. Accordingly, grountj seven is dismissed. -J24- We are also inclined to allow ground five ~s argued by the appellant's counsel serve to clarify that the tax relates to loss of earning capacity. I According to Munkman, it is now the e~tablished rule that loss of earnings will be calculated on the basis o;f the net earnings after the I deductions of tax and any similar unavoidable charges. That is both the earnings before the accident anq the estimated earnings ! afterwards, will be taken at the net figur~. Thus, it does not matter I e whether tax is deducted at source or asse:ssed later. This flows from the decision of the House of Lords in Briti:sh Transport Commission v. Gourley9 a lso cited by Mr. Nchito, SC that awards for loss of earning I capacity must take into account the inc6rne tax which the plaintiff would have had to pay on the earnings. In light of the foregoing ground five is allowed as elucidated. The tax to be assessed by the Deputy Registrar. In the net result, the appeal is partly succ~ssful. The final award to be reduced as indicated in this Judgment. ' -J25- In the circumstance, we order each p'.arty to bear own costs in this I Court. In the Court below costs rem~n for the respondent as ordered. Leave to appeal is granted. - - GA DEPUTY JUDGE PRES · • E~ COURT OF AE~PEAL COURT OF APPEAL JUDGE J. Z. MUL© GOTI COURT OF APPEAL JUDGE -J26-