IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRAR
CIVIL CAUSE NO. 2018 OF 2003
BETEWEN:
BHUPATRAI C
TANNA………………,…………………….PLAINTIFF
AND
KENETH Y.
SANGA(Administrator of the Estate
of Mr Sanga deceased)…………DEFENDANT
CORAM: TEMBO, ASSISTANT REGISTRAR
Kalaya, counsel
for the plaintiff
This is this court’s order
on assessment of damages herein made pursuant to a default judgment in favour of the plaintiff for damages for loss
of life. The default judgment is dated
27th August, 2003. The notice of hearing of this assessment was
duly served on the defendant who never appeared at the hearing. That left the plaintiff’s evidence totally
unchallenged.
The plaintiff’s claim is for
loss of life of the deceased Kashmir Tanna.
This follows a fatal accident which occurred on 12th
February, 2003 in which part of the body of the defendant’s lorry hit the
deceased resulting in the death.
The deceased died aged 24
years. At the time of her death the
deceased was working as a teacher at sacred heart private school where her
monthly salary was K4,500.00. The
deceased is survived by her elder sister Bhuptrai C Tanna aged 26 years and her
father Bhuptrai Tanna aged 47 years.
This court has read the submissions of counsel on the quantum of damages
and has a few things to say.
The submissions by counsel
indicate that the deceased is survived by her father, mother and sister. Yet in evidence the only dependants of the
deceased that were identified were the deceased’s father and elder sister. This court therefore wishes to remind
counsel that submissions ought not to be used as a forum for introduction of
new facts. Facts ought to be in
evidence. The submission that the
deceased is also survived by her mother is therefore disregarded as it is not
borne out of the evidence. Another
aspect of the submissions relates to the plaintiff’s claim. The plaintiff claims in the statement of
claim damages for loss of life. Yet in
the submissions the plaintiff is further referring to a claim for damages for
loss of dependency. The damages for
loss of life are understood by this
court to mean damages for loss of
expectation of life. The category of
damages for loss of dependency is distinct from that for loss of expectation of
life. Those damages for loss of
expectation of life are claimed on behalf of the estate of the deceased whereas
those for loss of dependency are claimed for the benefit of the dependants of
the deceased. As so in the present case
the manner of pleading herein leaves a lot to be desired and counsel ought to
take this seriously and pay more attention to the manner of pleading. Pleadings are not talking and ought to be
fair as they define the issues before the court.
In the circumstances the
plaintiff’s submissions for damages for loss of dependency shall be disregarded
as they are not covered by the plaintiff’s pleadings. This court shall therefore consider the plaintiff’s claim of
damages for loss of expectation of life as pleaded.
Damages for loss of expectation
of life are claimable in an action maintained on behalf of the deceased. See Rose v Ford 1937 A.C.
826. The award to be made in such an
action is arrived at using the same principles used in arriving at awards in
claims for personal injuries. See Claim
v Wilcock [1968] ALLER 817. The
figure awarded is therefore a conventional one arrived at after seeking
guidance from cases of similar nature to the one under consideration. This court considers that the deceased died
at the age of 24 years. The recent
national statistics put the average life expectancy in Malawi between 40 and 50
years. Clearly, therefore, the deceased
had a good number of years to live were it not for the wrongful death.
This court has sought
guidance from cases of similar nature to the instant one like that of Matupa
v Banda and Prime Insurance Company Limited Civil Cause Number 1000 of
1998. In that case the deceased also
died aged 24 years. And a sum of
K40,000.00 was awarded for loss of expectation of life in June, 2001. Since that award the kwacha has lost value.
In the circumstances of the
present case this court awards the plaintiff K180,000.00 damages for loss of
expectation of life.
The same is apportioned
between the plaintiff’s sister and her father in equal shares of K90,000.00 each. Costs are for the plaintiff.
Made in Chambers at
Blantyre this……………May, 2004.